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CONTENTS
Module - 1) Introduction and Basic Constitutional Principles
Module - 2) Delegated Legislation and Quasi-Judicial Functions
Module - 3) Judicial Review of Administrative Discretion and Remedies
Module - 4) Miscellaneous
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Go To Contents
Module-1 QUESTIONS :
Explain in detail : the concept and development of Administrative Law. (Nov-2011)
Explain the nature scope and sources of administrative law. Describe its growth in
India. (Nov-2014)
Explain in detail the meaning and nature of Administrative Law and state the
reasons for its growth. (Dec-2016)
Define the administrative law and scope of administrative law. Discuss the
development of administrative law in India. (Dec-2015)
Administrative Law is a branch of Constitutional Law." Discuss. (Oct-2013)
Explain in detail the relationship of Administrative Law with Constitutional Law
with case laws. (Dec-2016)
Explain : administrative law is part of the constitutional law. (Nov-2011)
Discuss : Administrative Law is a part of constitutional law. (Nov-2012)
Explain in detail the Principle of Rule of Law and the approach of the supreme Court
in the year 1951 about the same and thereafter. (Oct-2013)
Explain in detail : principle of rule of law. (Nov-2011, Dec-2016)
Explain in detail : Prof Diceys principle of rule of law. (Nov-2012)
Discuss in detail the principle of Rule of law propounded by prof dicey along with its
implementation in India. (Nov-2014, Dec-2015)
Doctrine of Separation is never completely accepted and implemented in India. Discuss
this statement and explain the doctrine of Separation of Powers as given by Montesque.
(Oct-2013, Dec-2015)
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Go To Contents
Module-1 ANSWERS :
Explain in detail : the concept and development of Administrative Law. (Nov-2011)
Explain the nature scope and sources of administrative law. Describe its growth in
India. (Nov-2014)
Explain in detail the meaning and nature of Administrative Law and state the
reasons for its growth. (Dec-2016)
Define the administrative law and scope of administrative law. Discuss the
development of administrative law in India. (Dec-2015)
ANSWER :
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possible, the individual and the state are placed on a plane of equality before the
bar of justice.
If exercised properly, the vast powers of the administration may lead to the welfare
state; but, if abused, they may lead to administrative despotism and a totalitarian
state. A careful and systematic study and development of administrative law
becomes a desideratum as administrative law is an instrument of control of the
exercise of administrative powers.
Nature and scope of administrative law :
Administrative Law is that branch of the law, which is concerned, with the
composition of powers, duties, rights and liabilities of the various organs of the
Government.
Administrative law identifies the excesses of power and endeavors to combat it.
The learned Author, Upendra Baxi, while commenting on the administrative law has
observed (in Introduction to "The Myth and reality of the Indian administrative
Law, by I.P. Massey 2001) as follows,
to understand the stuff of which administrative law is made one has to
understand relevant domains of substantive law to which courts apply the more
general principles of legality and fairness. In this way a thorough study of
administrative law is in effect, a study of the Indian legal system a whole. More
importantly, it is study of the pathology of power in a developing society.
The administrative law has growing importance and interest and the administrative
law is the most outstanding phenomena in the welfare state of today. Knowledge of
administrative law is as important for the officials responsible for carrying on
administration as for the students of law.
Administrative law is not codified like the Indian Penal code or the law of Contracts.
It is based on the constitution.
Administrative law is essentially Judge made law. It is a branch of public law as
compared to private law-relations inter-se.
Administrative law is an ever-expanding subject in developing society and is bound
to grow in size as well as quality in coming decades. We need an efficient
regulatory system, which ensures adequate protection of the peoples Rights.
The administrative agencies derive their authority from constitutional law and
statutory law. The laws made by such agencies in exercise of the powers conferred
on them also regulate their action. The principle features are: (a) transfer of power
by legislature to administrative authorities, (b) exercise of power by such agencies,
and (c) judicial review of administrative decisions.
Administrative law relates to individual rights as well as public needs and ensures
transparent, open and honest governance, which is more people-friendly.
Administrative law deals with the organization and powers of administrative and
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Before 1947, India was a police state. The ruling foreign power was primarily
interested in strengthening its own domination; the administrative machinery
was used mainly with the object in view and the civil service came to be
designated as the steel frame. The state did not concern itself much with the
welfare of the people.
But all this changed with the advent of independence with the philosophy in the
Indian constitution the preamble to the constitution enunciates the great
objectives and the socio-economic goals for the achievement of which the Indian
constitution has been conceived and drafted in the mid-20th century an era
when the concept of social welfare state was predominant. Constitution of India
is thus pervaded with the modern outlook regarding the objectives and functions
of the state.
Constitution of India embodies a distinct philosophy which regards the state as on
organ to secure good and welfare of the people this concept of state is further
strengthened by the Directive Principles of state policy which set out the economic,
social and political goals of Indian constitutional system. These directives confer
certain non-justiceable rights on the people, and place the government under an
obligation to achieve and maximize social welfare and basic social values of life
education, employment, health etc.
Administrative law essentially deals with location of power and the limitations
thereupon. In case of India, both of these aspects are governed by the
constitution, which act as sources of limitations upon the power of the state.
Indias Constitution is of the federal type. It established a dual polity, a two tier
governmental system with the Central Government at one level and the state
Governments at the other. The Constitution marks off the sphere of action of each
level of government by devising an elaborate scheme of distribution of legislative,
administrative, and financial powers between the Centre and the States. A
government is entitled to act within its assigned field and cannot go out of it, or
encroach on the field assigned to the other government.
In India, in the Watershed (turning point) one can include the whole control
mechanism provided in the constitution for the control of the administrative
authorities that is article 32, 226,136,300 and 311.
Thus the Constitution of India is having significant effect on laws including
administrative law. It is under Constitution of India that other laws are made and
executed, all governmental authorities and the validity of their functioning
adjudged.
No legislature can make a law and no governmental agency can act, contrary to
the constitution no act, executive, legislative, judicial or quasi-judicial, of any
administrative agency can stand if it is contrary to the constitution.
The constitution thus conditions the whole government process in the country. And
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the judiciary is obligated to see any governmental organ does not violate the
provisions of the constitution. This function of the judiciary entitles it to be called
as guardian of the constitution.
Sources of Administrative Law in India : There are four principal sources of
administrative law in India :-
Constitution of India
Acts and Statutes
Ordinances, Administrative directions, notifications and Circulars
Judicial decisions
Constitution of India :
The constitution of India deals with formulation of the executive, the powers of
the executive during peace and emergency times.
Administrative law is concerned solely with the Administrative acts or either the
administrator or of quasi judicial bodies. Now the methods by which such acts
are interfered with are by the use of the prerogative or common law writs,
especially by the writs of certiorari, mandamus and prohibitions. These writs are
issued only by the Supreme Court and High Courts in India under Articles 32 and
226 of the constitution of India.
The constitution of India also provides under Article 299 and 300, the
contractual and tortious liability of the government servants
Acts and Statutes :
Statute law is also an important source of Administrative power. The term covers
both Act of parliament and state legislatures comprising public general Acts and
private or local Acts.
Acts of parliament fall into two categories which may be conventionally termed
constituent Acts and enabling Act, but some Acts deal with both constitution and
power. In short, we can say statues are one of the important sources of
Administrative law.
Ordinances, Administrative directions, notifications and Circulars :
Rules, directives and regulations issued by Councils of Ministers and each
administrative agencies are also the focus of administrative law.
Extra care needs to be taken to ensure constitutionality and legality or validity of
such Ordinances, Administrative directions, notifications and Circulars and
ensure that it hasnt encroached the fundamental rights of citizens.
For that purpose these Ordinances, Administrative directions, notifications and
Circulars, etc are subjected to comply with some minimum procedural
requirements like consultation (public participation) and publication (openness in
government administration).
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distrust among them, it was felt necessary to include in the Constitution detailed
provisions on Fundamental Rights, safeguards to minorities, Scheduled tribes
scheduled castes and backward classes.
Fifthly, to promote the social welfare concept on which the state of India is to be
based. The constitution includes Directive Principles of State Policy.
Lastly, the Constitution contains not only the fundamental principles of governance
but also many administrative details, such as the provisions regarding citizenship,
official languages, government services, electoral machinery etc. In other
constitutions, these are usually left to be regulated by the ordinary law of the land.
Distinction between Constitutional Law and Administrative Law : The first specialist
administrative court was the Conseil d'tat set up in 1799, as Napoleon assumed
power in France. Constitutional and administrative law both govern the affairs of the
state. Administrative law, an area of law that gained early sophistication in France,
was until well into this century largely unrecognized in the United Kingdom as well as
the United States. To the early English writers on administrative law, there was
virtually no difference between administrative law and constitutional law. This is
evident from the words of Keith: It is logically impossible to distinguish
administrative from constitutional law and all attempts to do so are artificial." Some
jurists like Felix Frankfurter even went as far as to call it illegitimate and exotic". The
root of all confusion in the United Kingdom is its lack of a written constitution.
Views of jurists/ scholars on the distinction :
According to Holland, constitutional law describes the various organs of the
government at rest, while administrative law describes them in motion. [4]
Holland contends that the structure of the executive and the legislature comes
within the purview of constitutional law whereas their functioning is governed by
administrative law.
Jennings puts forward another view, which says that administrative law deals
with the organization, functions, powers and duties of administrative authorities
while constitutional law deals with the general principles relating to the
organization and powers of the various organs of the State and their mutual
relationships and relationship of these organs with the individual. Simply put,
constitutional law lays down the fundamentals of the workings of government
organs while administrative law deals with the details.
John Locke, holds that the individual can do anything but that which is
forbidden by law, and the state may do nothing but that which is authorized by
law". Administrative law is the chief method for people to hold state bodies to
account. People can apply for judicial review of actions or decisions by local
councils, public services or government ministries, to ensure that they comply
with the law.
Constitutional Law viewed through Administrative Eyes :
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Since the English Constitution is unwritten, the impact of constitutional law upon
administrative law in England is insignificant and blurred. As Dicey observes, the
rules which in other countries form part of a constitutional code are the result of
the ordinary law of the land in England. As a result, whatever control the
administrative authorities can be subjected to, if any, must be deduced from the
ordinary law, as contained in statutes and judicial decisions.
But, in countries having written constitutions, there is an additional source of
control over administrative action. In these countries there are two sources or
modes of exercising judicial control over the administrative agencies
constitutional and non-constitutional.
The written constitution imposes limitations upon all organs of the body politic.
Legislative acts : The legislative acts of the administration, i.e. statutory
instruments (or subordinate legislation) are expressly brought within the fold of
Article 13 of the Constitution, by defining law" as including order, bye-law, rule,
regulation, notification" or anything having the force of law". In India, a delegated
legislation can be challenged as invalid not only on the ground of being ultra vires
the statute which confers power to make it, but also on the additional ground that
it contravenes any of the fundamental rights guaranteed by Part III of the
Constitution.
Pure administrative acts : A non-legislative and a purely administrative action
having no statutory basis will be void if it breaches any of those fundamental rights
which set up limitations against any State action. Thus a non-statutory
administrative act may be void if it violates Article 14, guaranteeing equal
protection; Article 29 or Article 30guaranteeing minority rights; Article 19
guaranteeing freedom of speech, association, etc. ; and Article 16guaranteeing
equality of opportunity in employment. Thus the court would strike down any
administrative instruction or policy, notwithstanding its temporary nature, if it
operates as discriminatory, so as to violate any fundamental right of the person or
persons discriminated against. The most significant examples of such a case would
be actions affecting Article 19, 21 or 300-A.
An administrative act, whether statutory or non-statutory, will be void if it
contravenes any of the mandatory and justiciable provisions of the Constitution,
falling even outside the realm of fundamental rights like Articles 265, 301, 311
and 314.
Constitutional law thus advances itself into the judicial review chapter in
administrative law in a country like the USA or India. The courts in these countries
have to secure that the administration is carried on not only subject to the rule of
law but also subject to the provisions of their respective Constitutions. It can be
observed that an attack upon the constitutionality of a statute relates to
constitutional law and the constitutionality of an administrative action concerns
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administrative law, but the provisions of the same Constitution apply in both the
spheres.
Administrative growth in constitutional matrix :
Administrative law is a by-product of intensive form of Government. During the last
century, the role of Government has changed in almost every State of the world;
from a laissez faire state to a welfare and service state. As a result, it is expected
of the modern state not only to protect its citizens from external aggression and
internal disturbance, but also to take care of its citizens, right from birth to their
death. Therefore, the development of administrative process and the administrative
law has become the cornerstone of modern political philosophy.
Today there is a demand by the people that the Government must redress their
problems in addition to merely defining their rights. The rights are elaborately
defined in the Constitution but the policies to protect these rights are formulated by
the Government (the executive) and implemented by the administrative agencies
of the State. There thus arises a direct nexus between the constitutional law and
administrative law where the former acts as a source from which the rights of the
individuals flow and the latter implements its policies accordingly mandated to
preserve the sanctity of those rights.
It is widely agreed that the right of equality in the American Constitution will be a
sterile right if the black is the first to lose his job and the last to be reemployed. In
the same manner the equality clause in the Indian Constitution would be
meaningless if the Government does not come forward to actively help the weaker
sections of society to bring about equality in fact. This requires the growth of
administrative law and administrative process under the welfare philosophy
embodied in the constitutional law.
The Genus-Species Relationship :
Administrative law has been defined as the law relating to administration. It
determines the organization, powers and duties of administrative authorities. This
definition does not make any attempt to distinguish administrative law from
constitutional law. Besides, this definition is too wide because the law which
determines the powers of administrative authorities may also deal with the
substantive aspects of such powers. It may deal with matters such as public health,
housing, town and country planning, etc which are not included within the scope of
administrative law. Administrative law, however, tends to deal with these matters
as the Constitution has embodied the principle of a welfare State, and the State
can execute and implement these rules veraciously in the society only through
administrative laws.
Central Administrative Tribunal (CAT) : Establishment of the Central Administrative
Tribunal under the Administrative Tribunals Act, 1985 is one of the important steps
taken in the direction of development of administrative law in India.42 The
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Explain in detail the Principle of Rule of Law and the approach of the supreme Court
in the year 1951 about the same and thereafter. (Oct-2013)
Explain in detail : principle of rule of law. (Nov-2011, Dec-2016)
Explain in detail : Prof Diceys principle of rule of law. (Nov-2012)
Discuss in detail the principle of Rule of law propounded by prof dicey along with its
implementation in India. (Nov-2014, Dec-2015)
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ANSWER :
Refer :
Intro :
The Expression Rule of Law plays an important role in the administrative law. It
provides protection to the people against the arbitrary action of the administrative
authorities.
The expression rule of law has been derived from the French phrase la Principle
de legality. i.e. a government based on the principles of law.
In simple words, the term rule of law, indicates the state of affairs in a country
where, the law rules.
Here, 'Law' may be taken to mean mainly a rule or principle which governs the
external actions of the human beings and which is recognized and applied by the
State in the administration of justice.
Rule of Law is a dynamic concept :
Simply speaking, it means supremacy of law or predominance of law and
essentially, it consists of values.
Origin of the phrase : The concept of the rule of Law is of old origin.
Edward Coke is said to be the originator of this concept, when he said that the King
must be under God and Law. And thus vindicated the supremacy of law over the
pretensions of the executives.
Prof. A.V. Dicey later developed on this concept in the course of his lectures at the
Oxford University. Dicey was an individualist; he wrote about the concept of the
Rule of law at the end of the golden Victorian era of laissez-faire in England. That
was the reason why Diceys concept of the Rule of law contemplated the absence of
wide powers in the hands of government officials. According to him, wherever there
is discretion there is room for arbitrariness. Further he attributed three meanings
to Rule of Law.
(1) The First meaning of the Rule of Law is that no man is punishable or can
lawfully be made to suffer in body or goods except for a distinct breach of law
established in the ordinary legal manner before the ordinary courts of the land.
(The view of Dicey, quoted by Garner in his Book on Administrative Law.)
(2) The Second Meaning of the Rule of Law is that no man is above law. Every
man whatever be his rank or condition. is subject to the ordinary law of the
realm and amenable to the jurisdiction of the ordinary tribunals (Ibid).
(3) The Third meaning of the rule of law is that the general principle of the
constitution are the result of judicial decisions determining the rights of private
persons in particular cases brought before the court. (View of Dicey, quoted by
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them within their powers. The rule of law established by him requires that every
action of the administration must be backed by law or must have been done in
accordance with law.
The role of Dicey in the development and establishment of the concept of fair
justice cannot be denied.
The concept of rule of law, in modern age, does not oppose the practice of
conferring discretionary powers upon the government but on the other hand
emphasizing on spelling out the manner of their exercise. It also ensures that every
man is bound by the ordinary laws of the land whether he be private citizens or a
public officer; that private rights are safeguarded by the ordinary laws of the land.
Thus the rule of law signifies that nobody is deprived of his rights and liberties by
an administrative action; that the administrative authorities perform their functions
according to law and not arbitrarily; that the law of the land are not
unconstitutional and oppressive; that the supremacy of courts is upheld and judicial
control of administrative action is fully secured.
Basic Principles of the Rule of Law :
Law is Supreme, above everything and every one. No body is the above law.
All things should be done according to law and not according to whim
No person should be made to suffer except for a distinct breach of law.
Absence of arbitrary power being heart and soul of the "rule of law"
Equality before law and equal protection of law
Discretionary powers should be exercised within reasonable limits set by law.
Adequate safeguard against executive abuse of powers
Independent and impartial Judiciary
Fair and Justice procedure
Speedy Trial
Rule of Law and Indian Constitution :
In India the Constitution is supreme. The preamble of our Constitution clearly sets
out the principle of rule of law.
It is sometimes said that planning and welfare schemes essentially strike at rule of
law because they affect the individual freedoms and liberty in many ways.
But rule of law plays an effective role by emphasizing upon fair play and greater
accountability of the administration. It lays greater emphasis upon the principles of
natural justice and the rule of speaking order in administrative process in order to
eliminate administrative arbitrariness.
1951 development in SC :
<work on this>
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even in dictatorship it would be possible to say that there is rule of law because
every law made by the dictator, however arbitrary and unreasonable, has to be
obeyed and every action has to be taken in conformity with such law. In such a
case too even where the political set-up is dictatorial it is the law that governs the
relationship between men.
Contemporary Scenario :
The modern concept of the Rule of Law is fairly wide and, therefore, sets up an
idea for government to achieve. This concept was developed by the International
Commission of Jurists, known as Delhi Declaration, 1959, which was later on
confirmed at Lagos in 1961.
According to this formulation, the Rule of Law implies that the functions of the
government in a free society should be so exercised as to create conditions in
which the dignity of man as an individual is upheld.
During the last few years the Supreme Court in India has developed some fine
principles of Third World jurisprudence. Developing the same new constitutional-
ism further, the Apex Court in Veena Seth v. State (AIR 1983 SC 339) of Bihar
extended the reach of the Rule of Law to the poor and the downtrodden, the
ignorant and the illiterate, who constitute the bulk of humanity in India, when it
ruled that the Rule of Law does not exist merely for those who have the means to
fight for their rights and very often do so for the perpetuation of the status quo,
which protects and preserves their dominance and permits them to exploit a large
section of the community. The opportunity for this ruling was provided by a letter
written by the Free Legal Aid Committee, Hazaribagh, Bihar drawing its attention to
unjustified and illegal detention of certain prisoners in jail for almost two or three
decades.
Recent aggressive judicial activism can only be seen as a part of the efforts of the
Constitutional Courts in India to establish rule-of-law society, which implies that no
matter how high a person, may be the law is always above him.
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The judges of the high Court and the judges of the Supreme Court cannot be
removed except for misconduct or incapacity and unless an address supported by
two thirds of the members and absolute majority of the total membership of the
House is passed in each House of Parliament and presented to the President Article
124 (3). An impeachment motion was brought against Justice Ramaswami, a judge
of the Supreme court, but it failed to receive the support of the prescribed number
of members of Parliament.
The salaries payable to the judges are provided in the Constitution or can be laid
down by a law made by Parliament. Article 125 (1) and Art 221 (1).
Every judge shall be entitled to such privileges and allowances and to such rights in
respect of absence and pension, as may from time to time be determined by or
under any law made by Parliament and until so determined, to such privileges,
allowance and rights as are specified in the Second Schedule.
Neither the privileges nor the allowance nor his rights in respect of leave of
absence or pension shall be varied to his disadvantage after his appointment.
Appointments of persons to be, and the posting and promotion of, district judges in
any state shall be made by the Governor of the State in consultation with the High
Court exercising jurisdiction in relation to such state (Article 233)
The control over the subordinate courts is vested in the acts of the Legislature as
well as the executive.
The Supreme Court has power to make rules (Article 145) and exercises
administrative control over its staff.
The judiciary has power to enforce and interpret laws and if they are found in
violation of any provision of the Constitution, it can declare them un-constitutional
and therefore, void.
It can declare the executive action void if it is found against any provisions of the
Constitution.
Article 50 provides that the State shall take steps to separate the judiciary from the
executive.
CONCLUSION :
Thus, the three organs of the Government (i.e. the Executive, the Legislature and
the Judiciary) are not separate. Actually the complete demarcation of the functions
of these organs of the Government is not possible.
The Constitution of India does not recognize the doctrine of separation of power in
its absolute rigidity, but the functions of the three organs of the government have
been sufficiently differentiated. (Ram Jawaya v. State of Punjab, AIR 1955 SC 549)
None of the three of organs of the Government can take over the functions
assigned to the other organs.(Keshanand Bharti v. State of Kerala, AIR 1973 SC
1461, Asif Hameed v. State of J&K 1989 AIR, SC 1899)
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In State of Bihar v. Bihar Distillery Ltd., (AIR 1997 SC 1511) the Supreme Court
has held that the judiciary must recognize the fundamental nature and importance
of the legislature process and must accord due regard and deference to it.
The Legislative and Executive are also expected to show due regard and deference
to the judiciary.
The Constitution of India recognizes and gives effect to the concept of equality
between the three organs of the Government. The concept of checks and balance is
inherent in the scheme.
Thus, we can conclude that the Montesque Doctrine of Separation of Powers is
never completely accepted and implemented in India.
Go To Module-1 QUESTIONS
Go To Contents
Explain the following in the light of principles of natural justice along with relevant
cases of the Supreme Court of India, (i) "No one should be condemned unheard", (ii)
No one shall be the judge in his own case. (Oct-2013)
Discuss : Natural Justice Principle as accepted in India, Judicial approach and
important cases.
Explain in detail : the principle of natural justice with necessary cases. (Nov-2012,
Dec-2015)
Explain in detail : principles of natural justice given in Administrative Law. (Nov-2011)
Discuss the principle of Audi alteram partem (hear the other side) with decided
cases. (Nov-2014)
Explain : Principle of Natural Justice. (Dec-2016)
ANSWER :
Intro :
The concept of natural justice is the backbone of law and justice. In the quest for
justice the principles of natural justice have been utilized since the dawn of
civilization. Principles of natural justice trace their ancestry to ancient civilization
and centuries long past. Initially natural justice was conceived as a concomitant of
universal natural law.
Most of the thinkers of fifteenth to eighteenth century considered natural law and
justice as consisting of universal rules based on reason and thus were immutable
and inviolable.
Greek thinkers laid the basis for natural law. The Greek philosophers traditionally
regarded law as closely to both justice and ethics.
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Similarly in the middle Ages, the Christian legal philosophy, considered natural law
founded on reasons and a reflection of eternal laws.
The concept of natural justice can be traced from Biblical Garden of Eden, as also
from Greek, Roman and other ancient cultures like Hindu.
Even before evolution of western civilization, the Vedic Indians too were familiar
with the natural theory of law.
Thus, the widespread recognition, in many civilizations and over centuries the
principle of natural justice belong rather to the common consciousness of the
mankind than to juridical science.
Though, the practice of confining the expression natural justice to the procedural
principles (that no one shall be judge in his own case and both sides must heard) is
of comparatively recent origin, it was always present in one way or the other form.
The expression was used in the past interchangeably with the expressions Natural
Law, Natural enquiry, the laws of God, Sampan jus and other similar expressions.
What does natural justice mean ?
Natural Justice is rooted in the natural sense of what is right and wrong. It
mandates the Adjudicator or the administrator, as the case may be, to observe
procedural fairness and propriety in conducting inquiry or investigation or
proceedings.
The object of Natural Justice is to secure Justice by ensuring procedural fairness.
To put it negatively, it is to prevent miscarriage of Justice.
It is concerned with procedure and it seeks to ensure that the procedure is just,
fair and reasonable.
It may be regarded as counterpart of the American Due Process.
Co-relationship between Law and Natural Justice :
(a) Law is the means, Justice is the end. Law may be substantive as well as
procedural.
(b) Natural Justice also aims at Justice. It, however, concerns itself only with the
procedure. It seeks to secure justice by ensuring procedural fairness. It creates
conditions for doing justice.
(c) Natural justice humanizes the Law and invests the Law with fairness.
(d) Natural Justice not only supplements the Law, but can, in few cases, also
supplant (replace) the Law.
(e) Natural Justice operates in areas not specifically covered by the enacted law. An
omission in statute, likely to deprive a procedure of fairness, may be supplied by
reading into the relevant provision the appropriate principle of Natural Justice.
Natural Justice in contemporary India :
The natural justice principles in India are transmigration of common law to the sub-
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continent during the British rule. Before the commencement of constitution the
courts in India insisted on fair hearing where punishments were awarded under the
statutory provisions and they demanded fair hearing, even in statutory
requirements.
Indian courts clung to the traditional distinction between (i) judicial, (ii) quasi-
judicial, and (iii) administrative functions. The application of natural justice was for
considerable time confined to (i) and (ii) ie judicial and quasi-judicial proceedings.
In state of Bina Panis case (AIR 1967 S.C. 1259) the Supreme Court has tried to
abandon the traditional view by holding that It is true that the order is
administrative in Character but even an administrative order must be made
consistently with the rules of natural justice.
The decision of Supreme Court in A.K. Kripaks case (AIR 1973 S.C. 150) is
landmark in the application of principles of natural justice. In the instant case court
held : the dividing line between an administrative power and a quasi-judicial
power is quite thin and is being gradually obliterated.
The observations of Hegde,J are remarkable. The learned judge after examining
various English and Indian cases has tried to remove all the clouds of doubt
relating to application of natural justice by stating, "the concept of rule of law
would loose its vitality if the instrumentalities of the state are not charged with
the duty of discharging their functions in a fair and just manner".
The controversy was put at rest Bhagwati,J. in Manekas case, he emphasized that,
"If the purpose of the rules of natural justice is to prevent miscarriage of justice
one fails to see why those rules should be made inapplicable to administrative
enquiries".
Fundamental Principles of Natural Justice :
1. Nemo Judex in Causa Sua or Rule against bias or None should be a Judge in his
own cause, and
2. Audi Alter am Partem or Hear the other side or Hear both sides or No person
should be condemned unheard.
Exceptions to the principle of Natural Justice :
Introduction :
Though the rules of natural justice, namely, nemo judex in causa sua and audi
alteram partem, have now a definite meaning and connotation in law, and their
content and implications are well-understood and firmly established, they are
nonetheless not statutory rules. Each of these rules yields to and changes with
the exigencies of different situations.
There are situations which demand the exclusion of the rules of natural justice
by reason of diverse factors like time, place, the apprehended danger and so on.
These rules do not apply in the same manner to situations which are not alike.
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These rules are not cast in a rigid mould nor can they be put in a legal strait-
jacket. They are not immutable but flexible.
These rules can be adopted and modified by statutes and statutory rules and
also by the constitution of the tribunal which has to decide a particular matter
and the rules by which such tribunal is governed.
In the following cases, the principles of natural justice may be excluded :
1. Where a statute either expressly or by necessary implication excludes
application of natural justice;
2. Where the action is legislative in character, plenary or subordinate;
3. Where the doctrine of necessity applies;
4. Where the facts are admitted or undisputed;
5. Where the inquiry is of a confidential nature;
6. Where preventive action is to be taken;
7. Where prompt and urgent action is necessary;
8. Where nothing unfair can be inferred by non-observance of natural justice.
One thing should be noted. Inference of exclusion of natural justice should not be
readily made unless it is irresistible, since the courts act on presumption that the
legislature intends to observe the principles of natural justice and those principles
do not supplant but supplement the law of the land.
Therefore, all statutory provisions must be read, interpreted and applied so as to
be consistent with the principles of natural justice.
Effect of breach of the principles of natural justice :
A complicated and somewhat difficult question is : What is the effect of breach or
contravention of the principles of natural justice?
Does the breach go to the root of the matter rendering a decision void or merely
voidable ?
A voidable order is an order which is legal and valid unless it is set aside by a
competent court at the instance of an aggrieved party. On the other hand, a void
order is not an order in the eye of law. It can be ignored, disregarded, disobeyed or
impeached in any proceeding before any court or tribunal. It is a stillborn order, a
nullity and void ab initio.
So far as India is concerned, it is fairly well settled and courts have consistently
taken the view that whenever there is violation of any rule of natural justice, the
order is null and void.
Thus, where appointment of a government servant is cancelled without affording an
opportunity of hearing, or where an order retiring a civil servant on the ground of
reaching superannuation age was passed without affording an opportunity to the
employee, or where a passport of a journalist was impounded without issuing
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A Judge must be of sterner stuff. His mental equipoise must always remain firm
and undeflected. He should not allow his personal prejudice to go into the
decision-making. The object is not merely that the scales be held even; it is also
that they may not appear to be inclined."
If the Judge is subject to bias in favour of or against either party to the dispute
or is in a position that a bias can be assumed, he is disqualified to act as a
Judge, and the proceedings will be vitiated.
This rule applies to the judicial and administrative authorities required to act
judicially or quasi-judicially.
Types of Bias : Bias can be of three types,
A. Pecuniary bias,
B. Personal bias,
C. Judicial obstinacy (Bias as to the Subject-matter)
A. Pecuniary Bias :
It is well-settled that a pecuniary interest, however slight, will disqualify any
person from acting as an adjudicator, even though it is not proved that the
decision is in any way affected.
In Halsbury's Laws of England, it is stated, There is a presumption that any
financial interest, however small, in the matter in dispute disqualifies a person
from adjudicating.
Dimes v. Grant Junction Canal is considered to be the classic example of the
application of the rule against pecuniary interest. In this case, the suits were
decreed by the Vice-Chancellor and the appeals against those decrees were filed
in the Court of Lord Chancellor Cottenham. The appeals were dismissed by him
and decrees were confirmed in favour of a canal company in which he was a
substantial shareholder. The House of Lords agreed with the Vice-Chancellor and
affirmed the decrees on merits. In fact, Lord Cottenham's decision was not in
any way affected by his interest as a shareholder; and yet the House of Lords
quashed the decision of Lord Cottenham.
B. Personal Bias :
The second type of bias is a personal one. A number of circumstances may give
rise to personal bias. Here a Judge may be a relative, friend or business
associate of a party. He may have some personal grudge, enmity or grievance or
professional rivalry against such party. In view of these factors, there is every
likelihood that the Judge may be biased towards one party or prejudiced towards
the other.
In State of U.P. v. Mohd. Nooh, a departmental inquiry was held against A by B.
As one of the witnesses against A turned hostile, B left the inquiry, gave
evidence against A, resumed to complete the inquiry and passed an order of
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dismissal. The Supreme Court held that the rules of natural justice were
completely discarded and all canons of fair play were grievously violated by B.
In the leading case of A.K. Kraipak v. Union of India, one N was a candidate for
selection to the Indian Foreign Service and was also a member of the Selection
Board. N did not sit on the Board when his own name was considered. Name of
N was recommended by the Board and he was selected by the Public Service
Commission. The candidates who were not selected filed a writ petition for
quashing the selection of N on the ground that the principles of natural justice
were violated.
C. Judicial Obstinacy (Bias as to the Subject-matter) :
There may also be a judicial bias, i.e. bias on account of judicial obstinacy
In State of W.E. v. Shivananda Pathak, a writ of mandamus was sought by the
petitioner directing the Government to promote him. A Single Judge allowed the
petition ordering the authorities to promote the petitioner forthwith. But the
order was set aside by the Division Bench. After two years, a fresh petition was
filed for payment of salary and other benefits in the terms of the judgment of
the Single Judge (which was reserved in appeal). It was dismissed by the Single
Judge. The order was challenged in appeal which was heard by a Division Bench
to which one Member was a Judge who had allowed the earlier petition. The
appeal was allowed and certain reliefs were granted. The State approached the
Supreme Court. Allowing the appeal and setting aside the order, the Apex Court
described the case of a new form of bias judicial obstinacy. It said that if a
judgment of a Judge is set aside by a superior court, the Judge must submit to
that judgment. He cannot rewrite overruled judgment in the same or in collateral
proceedings. The judgment of the higher court binds not only to the parties to
the proceedings but also to the Judge who had rendered it.
Conclusion :
Direct pecuniary interest, however small or slight it may be, will disqualify a
person from acting as a Judge.
However, in case of other interests, the test should be of reasonable likelihood
of bias. It must be based on reasonable apprehension of a reasonable man fully
apprised of all the facts.
It is no doubt desirable that all Judges, like Caesar's wife must be above
suspicion. But a ground reality cannot be ignored that Judges are also human,
and they have their likes and dislikes, preferences and prejudices and it is too
much to expect them to act as a machine uninfluenced by worldly affairs.
2. Audi Alter am Partem or Hear the other side or Hear both sides or No person
should be condemned unheard :
Introduction :
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There are certain basic values which a man has always cherished. They can be
described as natural law or divine law. As a reasonable being, a man must apply
this part of law to human affairs. The underlying object of rules of natural justice
is to ensure fundamental liberties and rights of subjects. They thus serve public
interest.
The golden rule which stands firmly established is that the doctrine of natural
justice is not only to secure justice but to prevent miscarriage of justice. Its
essence is good conscience in a given situation; nothing more but nothing less.
Meaning :
Audi alteram partem means hear the other side, or no man should be
condemned unheard or both the sides must be heard before passing any order.
Doctrine Explained :
The second fundamental principle of natural justice is audi alteram partem, i.e.
no man should be condemned unheard, or both the sides must be heard before
passing any order.
This is the basic requirement of rule of law. It has been described as
foundational and fundamental concept. It lays down a norm which should be
implemented by all courts and tribunals at national as also at the international
level.
In short, before an order is passed against any person, reasonable opportunity
of being heard must be given to him.
Elements of the maxim : Generally, this maxim includes two elements :
A. notice; and
B. hearing
A. Notice :
Before any action is taken, the affected party must be given a notice to show
cause against the proposed action and seek his explanation. It is a sine qua non
of the right of fair hearing. Any order passed without giving notice is against the
principles of natural justice and is void ab initio.
In R. v. University of Cambridge, Dr Bentley was deprived of his degrees by the
Cambridge University on account of his alleged misconduct without giving any
notice or opportunity of hearing. The Court of Kings Bench declared the decision
as null and void.
The object of a notice is to give an opportunity to the individual concerned to
present his case and, therefore, if the party is aware of the charges or
allegations, a formal defect would not invalidate the notice, unless prejudice is
caused to the individual.
If the government servant is placed under suspension and the inquiry is held at
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a different place from the place of his residence and he is not able to attend the
inquiry due to non-payment of subsistence allowance, the inquiry is vitiated.
Whether prejudice is caused or not is a question of fact and it depends upon the
facts and circumstances of the case.
Moreover, the notice must give a reasonable opportunity to comply with the
requirements mentioned therein. Thus, to give 24 hours time to dismantle a
structure alleged to be in a dilapidated condition is not proper and the notice is
not valid.
If the inquiry is under Article 311 of the Constitution of India, two notices (first
for charges or allegations and second for proposed punishment) should be given.
Where a notice regarding one charge has been given, the person cannot be
punished for a different charge for which no notice or opportunity of being heard
was given to him.
B. Hearing :
The second requirement of audi alteram partem maxim is that the person
concerned must be given an opportunity of being heard before any adverse
action is taken against him.
In the historic case of Cooper v. Wandsworth Board of Works, the defendant
Board had power to demolish any building without giving any opportunity of
hearing if it was erected without prior permission. The Board demolished the
house of the plaintiff under this provision. The action of the Board was not in
violation of the statutory provision. The court held that the Board's power was
subject to the qualification that no man can be deprived of his property without
having an opportunity of being heard.
The extent of opportunity of hearing to be given is neither dependent upon the
quantum of loss to the aggrieved person nor referable to the fatness of the stake
but is essentially related to the demands of a given situation. Therefore, if a
show cause notice is issued and the explanation is considered before taking
action under the statutory provisions, the rules of natural justice cannot be said
to have been violated on the ground that more opportunity should have been
afforded as a huge amount was at stake.
Disclosure of Materials :
An adjudicating authority must disclose all evidence and material placed
before it in the course of proceedings and must afford an opportunity to the
person against whom it is sought to be utilized.
The object underlying such disclosure is to afford an opportunity to the person
to enable him to prepare his defence, rebut the evidence relied upon by the
complainant against him and put forward his case before the authority.
Cross-Examination :
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Go To Module-1 QUESTIONS
Go To Contents
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Today the bulk of the decisions which affect a private individual come not from
courts but from administrative agencies exercising adjudicatory powers. The reason
seems to be that since administrative decision-making is also a by-product of the
intensive form of government, the traditional judicial system cannot give to the
people that quantity of justice, which is required in a welfare State.
Administrative decision-making may be defined, as a power to perform acts
administrative in character, but requiring incidentally some characteristics of
judicial traditions.
On the basis of this definition, the following functions of the administration have
been held to be quasi-judicial functions :
1. Disciplinary proceedings against students.
2. Disciplinary proceedings against an employee for misconduct.
3. Confiscation of goods under the sea Customs Act, 1878.
4. Cancellation, suspension, revocation or refusal to renew license or permit by
licensing authority.
5. Determination of citizenship.
6. Determination of statutory disputes.
7. Power to continue the detention or seizure of goods beyond a particular
period.
8. Refusal to grant no objection certificate under the Bombay Cinemas
(Regulations) Act, 1953.
9. Forfeiture of pensions and gratuity.
10. Authority granting or refusing permission for retrenchment.
11. Grant of permit by Regional Transport Authority.
(D) Quasi-legislative action OR Rule-making action OR Delegated Legislation :
Legislature is the law-making organ of any state. In some written constitutions, like
the American and Australian Constitutions, the law making power is expressly
vested in the legislature.
In the Indian Constitution though this power is not so expressly vested in the
legislature, yet the combined effect of Articles 107-111 and 196-201 is that the law
making power can be exercised for the Union by Parliament and for the States by
the respective State legislatures. It is the intention of the Constitution-makers that
those bodies alone must exercise this law-making power in which this power is
vested.
However, in the twentieth Century today these legislative bodies cannot give that
quality and quantity of laws, which are required for the efficient functioning of a
modern intensive form of government. Therefore, the delegation of law-making
power to the administration is a compulsive necessity.
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Go To Contents
Module-2 QUESTIONS :
Explain the meaning of delegated legislation and different kinds of control on it with
decided cases. (Nov-2011, Dec-2015)
Discuss : Judicial, Legislative and other Controls and Safeguards over Delegated
Legislation
Discuss : General Principles for delegated legislations.
What is delegated legislation? Explain the steps relating to control over delegated
legislation. (Nov-2012)
Explain in detail the Delegated Legislation and Control over it. (Oct-2013)
Explain in detail the judicial and legislative control over the delegated legislation.
(Nov-2014)
Discuss in detail the concept of Delegated Legislation. (Dec-2016)
Discuss : Delegated Legislation in USA and in India
Discuss : Functions which can be and cannot be delegated
Write notes : Conditional Legislation. (Oct-2013, Nov-2014, Dec-2015)
Write note : Act of sub-delegation. (Nov-2012, Nov-2014, Dec-2015)
Go To Contents
Module-2 ANSWERS :
Explain the meaning of delegated legislation and different kinds of control on it with
decided cases. (Nov-2011, Dec-2015)
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Discuss : Judicial, Legislative and other Controls and Safeguards over Delegated
Legislation
Discuss : General Principles for delegated legislations.
What is delegated legislation? Explain the steps relating to control over delegated
legislation. (Nov-2012)
Explain in detail the Delegated Legislation and Control over it. (Oct-2013)
Explain in detail the judicial and legislative control over the delegated legislation.
(Nov-2014)
ANSWER :
Refer :
Intro :
Delegated Legislation is one of the most significant developments (in
Administrative Law). The development of the legislative powers of the
administrative authorities in the form of the delegated legislation occupies very
important place in the study of the administrative law.
What is delegated legislation ? We know that there is no such general power
granted to the executive to make law. Executive can only supplements the law
under the authority of legislature. This type of activity namely, the power to
supplement legislation been described as delegated legislation or subordinate
legislation.
Reasons for growth of delegated legislation : The reasons as to why the Parliament
alone cannot perform the jobs of legislation in this changed context are not far to
seek. Apart from other considerations the inability of the Parliament to supply the
necessary quantity and quality legislation to the society may be attributed to the
following reasons :
i) Certain emergency situations may arise which necessitate special measures. In
such cases speedy and appropriate action is required. The Parliament cannot act
quickly because of the time required by the Parliament to enact the law.
ii) The bulk of the business of the Parliament has increased. Lot of the time of the
Parliament is devoted to political matters, matters of policy and foreign affairs.
iii) Certain matters covered by delegated legislation are of a technical nature which
require handling by experts. In such cases it is inevitable that powers to deal with
such matters is given to the appropriate administrative agencies to be exercised
according to the requirements of the subject matter.
iv) Parliament while deciding upon a certain course of action cannot foresee the
difficulties, which may be encountered in its execution. Accordingly various statutes
contain a 'removal of difficulty clause' empowering the administration to remove
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such difficulties by exercising the powers of making rules and regulations. These
clauses are always so worded that very wide powers are given to the
administration.
iv) The practice of delegated legislation introduces flexibility in the law. The rules
and regulations, if found to be defective, can be modified quickly. Experiments can
be made and experience can be profitability utilized.
Nature and Scope of delegated legislation :
Delegated legislation means legislation by authorities other than the Legislature,
the former acting on express delegated authority and power from the later.
Delegation is considered to be a sound basis for administrative efficiency and it
does not by itself amount to abdication of power if resorted to within proper limits.
The delegation should not, in any case, be unguided and uncontrolled. Parliament
and State Legislatures cannot abdicate the legislative power in its essential aspects
which is to be exercised by them. It is only a non-essential legislative function that
can be delegated and the moot point always lies in the line of demarcation between
the essential and nonessential legislative functions.
The essential legislative functions consist in making a law. It is to the legislature to
formulate the legislative policy and delegate, to executive, the formulation of
details in implementing that policy. Discretion as to the formulation of the
legislative policy is prerogative and function the legislature and it cannot be
delegated to the executive.
Discretion to make alterations in an Act and to effect amendments or repeals in the
existing laws is an essential legislative functions which cannot be delegated.
In order to avoid the dangers, the scope of delegation is strictly circumscribed by
the Legislature by providing for adequate safeguards, controls and appeals against
the executive orders and decisions.
The power delegated to the Executive to modify any provisions of an Act by an
order must be within the framework of the Act giving such power. The power to
make such a modification no doubt, implies certain amount of discretion but it is a
power to be exercised in aid of the legislative policy of the Act and cannot
i) travel beyond it, or
ii) run counter to it, or
iii) change the essential features, the identity, structure or the policy of the Act.
General Discussion :
Under the constitution of India, articles 245 and 246 provide that the legislative
powers shall be discharged by the Parliament and State legislature. However, the
delegation of limited legislative power to executive was conceived to be inevitable
and therefore it was not prohibited in the constitution. Further, Articles 13(3)(a) of
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the Constitution of India lays down that laws (including ordinances, order by-law,
rule regulation, notification, etc), which if found in violation of fundamental rights
would be void.
While commenting on indispensability of delegated legislation Justice Krishna Iyer
observed in the case of Arvinder Singh v. State of Punjab, AIR A1979 SC 321, that
the complexities of modern administration are so bafflingly intricate and bristle with
details, urgencies, difficulties and need for flexibility that our massive legislature
may not get off to a start if they must directly and comprehensively handle
legislative business in their plenitude. Delegation of some part of legislative power
becomes a compulsive necessity for viability.
General Principles for delegated legislations :
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Modes of control over delegated legislation : The practice of conferring legislative
powers upon administrative authorities, though beneficial and necessary, is also
dangerous because of the possibility of abuse of powers and other attendant evils.
There is consensus of opinion that proper precautions must be taken for ensuring
proper exercise of such powers. Unbridled discretion is most likely to result in
arbitrariness. The exercise of delegated legislative powers must be properly
circumscribed and vigilantly scrutinized by Courts and Legislatures to ensure the
advantage of the practice or to avoid the danger of its misuse.
Control of delegated legislation may be one or more of the following types :-
(1) Procedural control;
(2) Parliamentary control; and
(3) Judicial control;
(1) Procedural Control Over Delegated Legislation :
(A) Prior consultation of interests likely to be affected by proposed delegated
Legislation : From the citizen's point of view the most beneficial safeguard against
the dangers of the misuse of delegated Legislation is the development of a
procedure to be followed by the delegates while formulating rules and regulations.
In England as in America the Legislature while delegating powers abstains from
laying down elaborate procedure to be followed by the delegates. But certain
acts do however provide for the consultation of interested bodies, and
sometimes of certain Advisory Committees which must be consulted before the
formulation and application of rules and regulations.
This method has largely been developed by the administration independent of
statute or requirements. The object is to ensure the participation of affected
interests so as to avoid various possible hardships. Consultation has the dual
merits of providing as opportunity to the affected interests to present their own
case and to enable the administration to have a first-hand idea of the problems
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such modified form or shall stand annulled, as the case may be, so however that
any such modification or annulment shall be without prejudice to the validity of
anything previously done under that rule."
(3) Judicial Control : The chief instrument in the hands of the judiciary to control
delegated legislation is the "Doctrine of ultra vires". The doctrine of ultra vires may
apply with regard to :-
(A) Procedural defects in exercise of delegated power; and
(B) substantive defects in law/ rules being ultra vires the parent law
(C) Delegation of power being unconstitutional
(D) Excessive delegation by the legislature
(A) Procedural defects : The Acts of Parliament delegating legislative powers to
other bodies or authorities often provide certain procedural requirements to be
complied with by such authorities while making rules and regulations, etc. These
formalities may consist of consultation with interested bodies, publication of draft
rules and regulations, hearing of objections, considerations of representations etc.
If these formal requirements are mandatory in nature and are disregarded by the
said authorities then the rules etc. so made by these authorities would be
invalidated by the Judiciary. In short subordinate legislation in contravention of
mandatory procedural requirements would be invalidated by the court as being
ultra vires the parent statute.
The question of the effectiveness of the application of the doctrine of ultra vires,
so far as procedure is concerned, would largely depend upon the words used in
the particular statue. If the words are specific and clearly indicate the bodies to
be consulted, then it would be possible to show noncompliance.
(B) Substantive Defects : In case of delegated legislation, unlike and Act of the
Parliament, the court can inquire into whether it is within the limits laid down by
the parent statute. If a piece of delegated legislation were found to be beyond such
limits, court would declare it to be ultra vires and hence invalid. (R.V.Minister of
Health, (1943), 2 ALL ER591).
The administrative authorities exercising legislative power under the authority of
an Act of the Parliament must do so in accordance with the terms and objects of
such statute. To find out whether administrative authorities have properly
exercised the powers, the court have to construe the parent statute so as to find
out the intention of the legislature.
(C) Delegation of power being unconstitutional : The delegation can be challenged
in the courts of law as being unconstitutional, excessive or arbitrary.
The scope of permissible delegation is fairly wide. IF delegation is within the
wide limits, it is sustained. However, if delegation infringes on the provisions of
the Constitution it is not sustainable.
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The limitations imposed by the application of the rule of ultra vires are quite
clear. If the Act of the Legislature under which power is delegated, is ultra vires,
the power of the legislature in the delegation can never be good.
No delegated legislation can be inconsistent with the provisions of the
Fundamental Rights. If the Act violates any Fundamental Rights, then such rules,
regulations and bye-laws framed there under cannot be sustained.
Thus, even Where the parent Act is good, still the rules and regulations may
contravene any Fundamental Right and have to be struck down.
(D) Excessive delegation by the legislature as a ground for invalidity of a statute :
In dealing with the challenge, the vires of any State on the ground of Excessive
delegation it is necessary to enquire whether - The impugned delegation involves
the delegation of an essential legislative functions or power.
In Vasant lals case (A.I.R. 1961 S.C. 4), Subba Rao J. observed as follows, "The
constitution confers a power and imposes a duty on the legislature to make laws.
The essential legislative function is the determination of the legislative policy and
its formulation as a rule of conduct. Obviously it cannot abdicate its functions in
favour of another.
The self-discard of legislative power in favour of another agency/ executive
either in whole or in part is beyond the permissible limits of delegation. It is for a
Court to hold on a fair, generous and liberal construction of an impugned statute
whether the legislature exceeded such limits.
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<work on this>
Go To Module-2 QUESTIONS
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Go To Module-2 QUESTIONS
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Go To Contents
Module-3 QUESTIONS :
Explain : Controls on the discretionary powers of the administrators. (Nov-2011)
Discuss in detail the meaning and importance of Judicial Review. (Dec-2016)
Write notes : Malafide : Grounds for Judicial Review of Administrative Discretion.
(Oct-2013)
Discuss : Judicial review of administrative discretion
State different type of Writs and significance thereof. Explain in detail When Writ of
Quo Warranto is useful. HOW it differs from other writs in procedure ? (Oct-2013, Dec-
2015)
Explain : Kinds of writs. (Nov-2011, Dec-2016)
What is writ of habeas corpus? Explain with illustration in which circumstances it can
be filed. (Nov-2012, Nov-2014)
Explain : writ of habeas corpus. (Dec-2015)
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Explain : difference between Art-226 and 227 of the constitution of India. (Nov-2011)
Write note : difference between powers under art-32 and 226. (Nov-2012, Dec-2015)
Write notes : Distinction between writ jurisdiction of High Courts and the Supreme
Court. (Oct-2013)
Explain the power of high courts to issue writs under Art-226 of the constitution of
India. How these powers differ from that of supreme court under Art-32? (Nov-2014)
Discuss : Statutory remedies against administrative discretion : Civil Suits.
Discuss : Statutory remedies against administrative discretion : Appeals to Courts.
Discuss : Statutory remedies against administrative discretion : Appeal to tribunals.
Discuss : Appellate jurisdiction of the supreme court. (Nov-2014)
Discuss : Statutory remedies against administrative discretion : Appeal before the
Supreme Court, SLP
Write note : Special leave to appeal before the supreme court. (Nov-2012)
Write notes : Special Leave Petition as judicial remedy. (Oct-2013)
Discuss : Statutory remedies against administrative discretion : Public Interest
Litigation (PIL).
Discuss : Other remedies against administrative discretion : Council de Etat.
Write notes : Ombudsman and its adequacy in India. (Oct-2013)
Write note : ombudsman. (Nov-2012, Nov-2014)
Write note : Lokpal and Lokayukta. (Nov-2012)
Explain : powers and jurisdiction of Lokpal and Lokayukta. (Nov-2011, Dec-2015)
Discuss : Other remedies against administrative discretion : self-help.
Discuss the characteristics and importance of administrative tribunal. Explain how
administrative tribunals differ from courts. (Nov-2012)
Discuss : Constitutional provisions (and amendments) for administrative
tribunals.
Discuss in detail the concept and kinds of Administrative Tribunals. (Dec-2016)
What do you mean by administrative tribunals. Discuss its nature and
characteristics. Explain the position of administrative tribunals after the decision of
L Chandrakumar -v- union of India. (Nov-2014)
Explain in detail : concept and jurisdiction of administrative tribunals. (Nov-2011)
Explain the constitutions, characteristics and functions of the Administrative tribunals.
Describe importance thereof. (Oct-2013)
Explain : administrative tribunals. (Dec-2015)
Discuss : Case of (i) Sampat Kumar, (ii) L. Chandrakumar
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Go To Contents
Module-3 ANSWERS :
Explain : Controls on the discretionary powers of the administrators. (Nov-2011)
Discuss in detail the meaning and importance of Judicial Review. (Dec-2016)
Write notes : Malafide : Grounds for Judicial Review of Administrative Discretion.
(Oct-2013)
Discuss : Judicial review of administrative discretion
ANSWER :
Refer :
What is Administrative discretion ?
'Discretion' in laymans language means choosing from amongst the various
available alternatives without reference to any predetermined criterion, no matter
how fanciful that choice may be.
But the same term Discretion when qualified by the word administrative has
altogether different overtones. Discretion in this sense means choosing from
amongst the various available alternatives, BUT with reference to the rules of
reason and justice, and NOT according to personal whims. Such exercise of
"administrative discretion" is not to be arbitrary, vague and fanciful, but legal and
regular.
Judicial Review/ control : A notable feature of the Constitution is that it accords a
dignified and crucial position to the judiciary. Well-ordered and well-regulated judicial
machinery had been introduced in the country with the Supreme Court at the apex.
The jurisdiction of the Supreme Court is very broadly worded. It is a general court of
appeal from the High Court, is the ultimate arbiter in all-constitutional matters and
enjoys an advisory jurisdiction. It can hear appears from any court or tribunal in the
country and can issue writ for enforcing the Fundamental Rights.
The judiciary in India has been assigned role to play. It has to dispense justice not
only between one person and another, but also between the state and the citizens.
It interprets the constitution and acts as its protector and guardian by keeping all
authorities legislative, executive, administrative, judicial and quasi-judicial-within
bounds. The judiciary is entitled to scrutinize any governmental action in order to
assess whether or to it conforms to the constitution and the valid laws made there
under.
Need for control/ review of "administrative discretion" :
The problem of administrative discretion is complex. It is true that in any intensive
form of government, the government cannot function without the exercise of some
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discretion by the officials. But it is equally true that absolute discretion is a ruthless
master.
Discretionary power by itself is not pure evil but gives much room for misuse.
Therefore, remedy lies in tightening the procedure and not in abolishing the power
itself.
There is no set pattern of conferring discretionary powers on an executive. Modern
drafting technique uses the words like, adequate, advisable, appropriate,
beneficial, reputable, safe, sufficient, wholesome, deem fit, prejudicial to
safety and security, satisfaction, belief, efficient, public purpose, etc for the
purpose.
It is true that with the exercise of discretion on a case-to-case basis, these vague
generalizations are reduced into more specific moulds, yet the margin of oscillation
is never eliminated. Therefore, the need for judicial correction of unreasonable
exercise of administrative discretion cannot be overemphasized.
Grounds for judicial review :
I) at the stage of delegation of discretion;
II) at the stage of the exercise of discretion.
(I) Control at stage of delegation of discretion : The court exercise control over
delegation of discretionary powers to the administration by adjudicating upon the
constitutionality of the law under which such powers are delegated with reference
to the fundamental rights enunciated in Part III of the Indian Constitution.
Ultra vires delegation : If the law confers vague and wide discretionary power on
any administrative authority, it may be declared ultra vires Article 14, Article 19
and other provisions of the Constitution.
Excessive delegation : In certain situations, the statute though it does not give
discretionary power to the administrative authority to take action, may give
discretionary power to frame rules and regulations affecting the rights of
citizens. The court can control the bestowal of such discretion on the ground of
excessive delegation.
(II) Control at the stage of the exercise of discretion : In India, unlike the USA,
there is no Administrative Procedure Act providing for judicial review on the
exercise of administrative discretion. Therefore, the power of judicial review arises
from the constitutional configuration of courts. Courts in India have always held the
view that judge-proof discretion is a negation of the rule of law. The broad
principles on which the exercise of discretionary powers can be controlled, have
now been judicially settled. These may be conveniently grouped into following
generalizations :
A) Ultra vires exercise of discretion, ie exercise being in excess of the
delegated authority,
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himself neither a tenderer nor a hotelier. His grievance was that he was in the
same position as the successful tenderer because if an essential condition
could be ignored in the tenderers case why not in the petitioners? The
Supreme Court accepted the plea of locus stand in challenging the
administrative action. Justice P.N. Bhagwati, who delivered the judgment of
the Court, held :
(1) Exercise of discretion is an inseparable part of sound administration
and, therefore, the State which is itself a creature of the Constitution,
cannot shed its limitation at any time in any sphere of State activity.
(2) It is a well-settled rule of administrative law that an executive authority
must be rigorously held to the standards by which it professes its actions to
be judged and it must scrupulously observe those standards on pain of
invalidation of an act in violation of them.
(3) It is indeed unthinkable that in a democracy governed by the rule of law
the executive government or any of its officers should possess arbitrary
powers over the interests of an individual. Every action of the executive
government must be informed with reason and should be free from
arbitrariness. That is the very essence of the rule of law and its bare
minimal requirement.
(4) The government cannot be permitted to say that it will give jobs or
enter into contracts or issue quotas or licenses only in favor of those having
gray hair or belonging to a particular political party or professing a
particular religious faith. The government is still the government when it
acts in the matter of granting largesse and it cannot act arbitrarily. It does
not stand in the same position as a private individual.
(5) The exercise of discretion must not be arbitrary, fanciful and influenced
by extraneous considerations. In matters of discretion the choice must be
dictated by public interest and must not be unprincipled or unreasoned.
In Food Corporation of India v. M/s. Kamdhenu Cattle Seed Industries AIR
1993 SC 1601. The doctrine of legitimate expectation gets assimilated in the
rule of law and operates in our legal system. The Court observed : The mere
reasonable or legitimate expectation of a citizen, in such a situation, may not
by itself be a distinct enforceable right, but failure to consider and give due
weight to it may render the decision arbitrary, and this is how the
requirement of due consideration of a legitimate expectation forms part of the
principle of non-arbitrariness, a necessary concomitant of the rule of law.
Every legitimate expectation is a relevant factor requiring due consideration in
a fair decision-making process.
Conclusion : Thus within the area of administrative discretion the courts have tried to
fly high the flag of Rule of Law which aims at the progressive diminution of
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Go To Module-3 QUESTIONS
Go To Contents
State different type of Writs and significance thereof. Explain in detail When Writ of
Quo Warranto is useful. HOW it differs from other writs in procedure ? (Oct-2013, Dec-
2015)
Explain : Kinds of writs. (Nov-2011, Dec-2016)
What is writ of habeas corpus? Explain with illustration in which circumstances it can
be filed. (Nov-2012, Nov-2014)
Explain : writ of habeas corpus. (Dec-2015)
ANSWER :
WRIT OF HABEAS CORPUS page-100/135
Habeas Corpus literally means to have the body of. A writ of habeas corpus is
known as "the great and efficacious writ in all manner of illegal confinement", being
a remedy available to the meanest against the mightiest. It is a summons with the
force of a court order; it is addressed to the custodian (a prison official for
example) and demands that a prisoner be taken before the court, and that the
custodian present proof of authority, allowing the court to determine whether the
custodian has lawful authority to detain the prisoner. If the custodian is acting
beyond his or her authority, then the prisoner must be released.
Such a writ can be issued in following example cases :
When the person is detained and not produced before the magistrate within 24
hours
When the person is arrested without any violation of a law.
When a person is arrested under a law which is unconstitutional
When detention is done to harm the person or is malafide.
Habeas corpus writ is called bulwark of individual liberty against arbitrary
detention. The Indian judiciary has dispensed with the traditional doctrine of locus
standi, so that if a detained person is not in a position to file a petition, it can be
moved on his behalf by any other person. The scope of habeas relief has expanded
in recent times by actions of the Indian judiciary.
Habeas corpus writ is applicable to preventive detention also. This writ can be
issued against both public authorities as well as individuals. The Indian judiciary, in
a catena of cases, has effectively resorted to the writ of habeas corpus to secure
release of a person from illegal detention.
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Examples :
In October 2009, the Karnataka High Court heard a habeas corpus petition filed
by the parents of a girl who married a Muslim boy from Kannur district and was
allegedly confined in a madrasa in Malapuram town
The habeas writ was used in the Rajan case, a student victim of torture in local
police custody during the nationwide Emergency in India in 1976.
On 12 March 2014, Subrata Roy's counsel approached the Chief Justice moving a
habeas corpus petition. It was also filed by the Panthers Party to protest the
imprisonment of Anna Hazare, a social activist.
Habeas corpus has certain limitations. Though a writ of right, it is not a writ of
course.[Note 2] It is technically only a procedural remedy; it is a guarantee against
any detention that is forbidden by law, but it does not necessarily protect other
rights, such as the entitlement to a fair trial.
WRIT OF MANDAMUS page-101/135
Intro :
The Latin word mandamus means "we order". Writ of Mandamus is a command
(in the form of an Order) directed to the inferior court, tribunal, board,
corporation or any administrative authority or a person requiring the
performance of a specific duty fixed by law or associated with the office occupied
by the person. It is a type of extra-ordinary remedy available to the appellants
to compel the authority to perform a duty cast upon them.
The direction can be given by the Supreme Court or the High Court of a state.
The court can direct to do or not to do a specific act.
Writ of mandamus can NOT be issued in following cases :
Writ cannot be issued against a private individual
It cannot be issued in matters where the authority is using his discretionary
powers of the public authority.
eg Writ cannot be issued to the Government for the enhancement of dearness
allowance as it is a discretionary power of the Government.
Writ should not lie in a civil liability, which should be solved in civil courts by way
of civil suits.
Writ cannot be issued to a private medical college
Writ cannot be issued to any legislative body to enact a particular Act.
Writ cannot be issued against the President or Governor or a state
Writ cannot be issued when alternative remedies are available.
The sine qua non for mandamus is the existence of a statutory public duty
incumbent upon the person or body against whom the mandamus is sought. There
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must equally co-exist a corresponding right in the petitioner entitling him to claim
the enforcement of such public duty. These two preconditions form the foundation
for the issue of mandamus.
Grounds for Writ of Mandamus : The Writ can granted against a public authority if :
Acted against the law
Exceeded his limits of power
Acted with mala fides
Did not apply his mind
Abused his discretionary powers
Did not take into account relevant consideration
Has taken into account irrelevant consideration
Limitations :
The primary scope and function of mandamus is to "command" and "execute"
rather than to "enquire" and "adjudicate". It cannot be issued to change the
decision of a body so as to suit the petitioner. Obligations which are not of
statutory nature cannot be enforced by mandamus.
The writ petition is not maintainable when a remedy provided for under the Code
of Civil Procedure is available. For example, the High Court cannot entertain writ
petitions for mandamus to the Government who fails to deposit and pay in the
requisite time an enhanced compensation account as ordered by a lower Court.
The petitioners in this case would be directed to approach the executing Court
for appropriate relief.
WRIT OF PROHIBITION page-104/135
A writ of prohibition may be directed by any court of record (i.e., higher than a
misdemeanor court) toward any official body, whether a court or central/ state/
local Government, that is within the court's jurisdiction.
It is issued primarily to prevent such inferior court/ bodies from exceeding their
jurisdiction, or acting contrary to the rule of natural justice, for example, to restrain
a Judge from hearing a case in which he is personally interested. Inferior courts
include tribunals, commissions, magistrates and officers who exercise judicial
powers, affecting the property or rights of the citizen and acting in a summary way
or in a new course different from the common law.
These Writs may be issued as alternative or peremptory.
An alternative Writ directs the recipient to immediately act, or desist, and Show
Cause why the directive should not be made permanent.
A peremptory Writ directs the recipient to immediately act, or desist, and
return the Writ, with certification of its compliance, within a certain time.
The difference between writs of prohibition and certiorari, was explained by Justice
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the Court that a person who is disqualified to hold an office is still holding it. This
includes a voter or a member of any of the local bodies. A member of the
Legislative Assembly of a State can apply for a writ of quo warranto against the
Speaker. He has a right to know by what authority the Speaker of the body
functions as such.
In this connection the following observations of the Nagpur High Court in C.D.
Karake v. T.L. Shevde may also be noted :
In proceedings for a writ of quo warranto, the applicant does not seek to enforce
any right of his as such, nor does he complain of any non-performance of duty to
him. What is in question is the right of the non-applicant to hold the office and
order that is passed is an order outing him from that office.
Go To Module-3 QUESTIONS
Go To Contents
Explain : difference between Art-226 and 227 of the constitution of India. (Nov-2011)
ANSWER :
page-105-120 / 271
CONSTITUTIONAL MODES OF JUDICIAL REVIEW :
Both Art-226 and Art-227 are constitutional modes of judicial review. The judicial
review available under Articles 32, 136, 226, 227 can NOT be excluded by the
finality clause contained in the statute and expressed in any languages.
Any statute or ordinary laws cannot take away the jurisdiction of writ Courts under
article 32, 136, 226 and 227 as the Constitution of India provides them.
Any ordinary law cannot bar the jurisdiction of the Supreme Court under Article 32
and 136 and of the High Court under Articles 226 and 227.
In Indra Nehru Gandhi v. Raj Narain, the validity of Clause (4) of Article 329 A
inserted by the Constitution (39 the Amendment ) Act, 1975 was challenged on the
ground that it destroyed the basic structure of the Constitution.
Issue : The said Clause (4) provided that notwithstanding any Court order
declaring the election of the Prime Minister or the Speaker of Parliament to be
void, it would continue to be void in all respects and any such order and any
finding on which such order was based would be deemed always to have been
void and of no effect. This clause empowered Parliament to establish by law
some authority or body for deciding the dispute relating to the election of the
Prime Minister or Speaker. It provided that the decision of such authority or
body could not be challenged before the Court.
Held : This clause was declared unconstitutional and void as being violation of
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free and fair election, democracy and rule of law, which are parts of the basic
structure of the Constitution.
In this case judicial review, democracy, free and fair election and rule of law
were included in the list of the basic features of the Constitution. Consequently
any Constitutional amendment, which takes away, any of them will be
unconstitutional and therefore void.
Art-226 :
The constitution gives wide powers to all High Courts to ensure that injustice is not
tolerated in any sphere.
Definition Art 226 :
1. Notwithstanding anything in article 32 every High Court shall have power,
throughout the territories in relation to which it exercises jurisdiction, to issue
to any person or authority, including in appropriate cases, any Government,
within those territories directions, orders or writs, including writs in the nature
of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any
of them, for the enforcement of any of the rights conferred by Part III and for
any other purpose.
Discussion :
The judicial control of administrative action provides a fundamental safeguard
against the abuse of power. Since our Constitution was built upon the deep
foundations of rule of law, the framers of the Constitution made sincere efforts
to incorporate certain Articles in the Constitution to enable the courts to exercise
effective control over administrative action.
Under article 226 concurrent powers have been conferred on the respective High
Courts for the enforcement of fundamental rights or any other legal rights. It
empowers every High Court to issue to any person or authority including any
Government, in relation to which it exercises jurisdictions, directions, orders or
writs including writs of habeas corpus, mandamus, prohibition, quo warranto and
certiorari. In a writ petition, High Court cannot go into the merits of the
controversy. For example, in matters of retaining or pulling down a building the
decision is not to be taken by the court as to whether or not it requires to be
pulled down and a new building erected in its place.
It is important to note that the power is not only to enforce fundamental rights
but also for any other purpose. This makes its powers even wider than Supreme
Court. Here, any other purpose means any legal right of legal duty.
In a landmark case of L Chandra Kumar vs Union of India AIR 1997, SC has held
that the power of judiciary over legislative action vested in a High Court is a
basic feature of the constitution and cannot be removed through constitutional
amendment.
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Types of Writs : Under Article 226, High Courts in India are empowered to issue 6
specific types of writs, viz. the writ of Certiorari, Prohibition, Mandamus, Habeas
Corpus and Quo Warranto.
Locus Standi : Who can apply :
In general, the person whose constitutional right or legal right has been
infringed has the right to apply. However, due to judicial activism, the
"doctrine of sufficient interest" has originated. According to this, any person
who is even remotely affected can petition the High Court. It also allows
public spirited persons to file a writ petition for any person or class if that
person or class is not able to do so himself due to poverty or any other
reason.
In ABSK Sangh vs Union of India AIR 1991, SC held that even an
unregistered trade union has right to file a petition for redressal of a
common grievance.
In the case of Chairman, Railway Board vs. Chandrima Das AIR 2000, SC
held that an advocate of Cal. High Court has sufficient interest in making a
public place like a railway station a safe place and so she has right to
demand compensation for the bangladeshi woman gang raped by railway
employees.
Scope of the High courts Jurisdiction under Article 226 :
The jurisdiction of the High Court under Art 226 is very vast and almost without
any substantive limits barring those such as territorial limitations.
Although the jurisdiction of the High Court is so vast and limitless, the courts
have imposed certain limits in their jurisdiction in order to be able to cope with
the volume of litigation and also to avoid dealing with questions, which are not
capable of being answered judicially. There are three types of limitations:
Those arising from judicial policy;
Those which are procedural and
Those because of the petitioners conduct.
The Supreme Court has held that the extra ordinary jurisdiction should be
exercised only in exceptional circumstances.
It was held that the High Court was not justified in going into question of
contractual obligations in a writ petition. It was held that the jurisdiction under
Art 226 should be used most sparingly for quashing criminal proceedings. The
High Court should interfere only in extreme cases where charges ex facie do not
constitute offence under the Terrorist and Destructive Activities Act (TADA) It
should not quash the proceedings where the application of the Act is a debatable
issue.
Case-law :
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In the case of Basappa vs Naggapa, AIR 1954, SC has held that the art 226
confers wide powers to remedy injustice where ever it is found. Art 226 says,
"...or any of them...", which means that it is not limited only the mentioned
types of writs. It can issue orders orders of any kind that the situation may
require. Thus, it makes the scope of Art 226 a lot wider than art 32.
1. In the exercise of their discretionary jurisdiction, the High Court does not, as
a Court of appeal or of revision, correct mere errors of law or of facts.
2. The resort to the said jurisdiction is not permitted if an alternative remedy for
relief which may be obtained by suit or other mode is prescribed by statute.
Where it is open to the aggrieved person to move another tribunal or even itself
in another jurisdiction for obtaining redress in the manner provided in the
statute, the Court does not, by exercising the writ jurisdiction permit the
machinery created by the statute to be bypassed.
However, the existence of an adequate alternative legal remedy is not a bar
to the invocation of the High Courts jurisdiction under Article 226 when relief
is sought in case of an infringement of a fundamental right or a tribunal acting
ultra-vires to its jurisdiction or when the principles of natural justice have not
been followed.
3. It does not generally enter upon the determination of questions which
demand an elaborate examination of evidence to establish the right to enforce
which the writ is claimed.
4. It does not interfere on the merits with the determination of the issues made
by the authority invested with statutory power, particularly when they relate to
matters calling for judicial intervention, such as, where the determination is
malafide or is prompted by extraneous considerations or is made in
contravention of the principles of natural justice or any constitutional provision.
5. The Court may also intervene where :
a. the authority acting under the concerned law does not have the requisite
authority or the order which is purported to have been passed under the law
is not warranted or is in breach of the provisions of the concerned law or the
person against whom the action is taken is not the person against whom the
order is directed;
b. where the authority has exceeded its powers or jurisdiction or has failed or
refused to exercise jurisdiction vested in it;
c. where the authority has not applied its mind at all or has exercised its
power dishonestly or for an improper purpose;
6. Where the Court cannot grant a final relief, the Court does not entertain a
petition only for giving interim relief. If the Court is of the opinion that there is
no other convenient or efficacious remedy open to the petitioner, it will proceed
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to investigate the case on its merits and if the Court finds that there is an
infringement of the petitioners legal rights, it will grant final relief but will not
dispose off the petition only by granting interim relief.
7. Where the satisfaction of the authority is subjective, the Court intervenes
when the authority has acted under the dictates of another body or when the
conclusion is arrived at by the application of a wrong test or misconstruction of a
statute or it is not based on material which is of rationally probative value and
relevant to the subject matter in respect of which the authority is to satisfy
itself. If again the satisfaction is arrived at by taking into consideration material
which the authority properly could not, or by omitting to consider matter which it
ought to have, the Court interferes with the resultant order.
8. In proper cases the Court also intervenes when some legal or fundamental
right of the individual is seriously threatened, though not actually invaded.
9. High Courts ordinarily do not decide questions of fact and is left upon the
statutory mechanism to adjudicate such matters. It is adjudicated in the rarest
of rare cases.
Court Martial and art 226 :
In a significant case, Delhi High Court held that section 18 of India Army Act
is not beyond the scope of High Court. While High Court may not interfere in
the sentence awarded in a court martial, such an order cannot be arbitrary
and mala fide. Thus, it is open to judicial review.
Dispute between private parties - No Jurisdiction :
In Mohan Pandey vs Usha Rani Rajgaria SCC 1992, SC held that the
extraordinary jurisdiction of High Court cannot be exercised in the private
party disputes relating to property rights unless there is a violation of
statutory rights by statutory authorities.
Natural Justice :
Natural Justice is not exclusively the principle of administrative law. The
courts are also bound by the same principle. Every administrative action must
be supported by reasons. The reasons must be recorded to ensure that there
is no arbitrariness.
Territorial extent of writ jurisdiction under Art-226 :
Art 226 imposes two limits on HC's writ. First, it can run only in the territorial
jurisdiction of the High Court and secondly the person or authority must lie in
that jurisdiction.
In the case of Election Commision of India vs Venkata Rao, AIR 1975 SC held
that Madras High Court cannot issue a writ to ECI because it is based in New
Delhi and so is out of its jurisdiction. The law commission recommended that
these are serious limitations and they defeat the very purpose of this article.
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So it was amended by 15th amendment in 1963. High Court can now issue a
writ even to a central authority if the cause of action in whole or part arises in
its jurisdiction.
Art-226 is a discretionary Remedy - Not to be exercised if alternate remedy is
available :
The remedy available in 226 is a discretionary remedy and the High Court has
the discretion to accept or refuse a petition. In general, if a remedy is
available elsewhere, writs under 226 are discouraged. However, this does not
mean that any remedy available can be a ground for not entertaining the
petition under 226. The remedy must be effective and sufficient.
In the case of Vellaswamy v IG Police, Madras 1982, SC held that the
remedy under Police Rules of TN was not sufficient and so High Court was
wrong in dismissing the petition.
Effect of delay : Remedy under 226 should be sought within a reasonable time.
However, High Court may accept a petition is there is a reasonable cause for delay
in seeking justice. Poverty has been held to be reasonable ground.
CONCLUSION :
The prerogative powers of writ jurisdiction conferred by the constitution for
judicial review of administrative action is undoubtedly discretionary and yet
unbounded in its limits. The discretion however should be exercised on sound
legal principles. In this respect it is important to emphasise that the absence
of arbitrary power is the first essential of the rule of law upon which the whole
constitution system is based.
Compare Art-136 and Art-226 :
As regard the points of difference between the writ jurisdiction of the High Courts
under Article 226 any appellate jurisdiction of the Supreme Court under Article 136,
it can be said that a high court can issue a writ to any authority whether quasi-
jurisdiction or administrative; whereas the supreme Court under Article 136 can
hear appeal only from a court or tribunal. In this respect writ jurisdiction of a High
Court is broader than the appellate scope of the Supreme Court under Article 136.
But from another point of view the scope of Article 226 is narrower than Article
136. The Supreme Court can interfere with a decision of a tribunal on wider form
than the High Court in its writ jurisdiction, HC jurisdiction is not so flexible, it does
not enter into questions of facts while there is no restriction on the powers of the
Supreme Court under Art-136.
Jurisdiction under Art 227 :
The jurisdiction under Art 227 is narrower than that under Art 226 because while
under art 226, the High Court can quash any administrative action, under Art 227,
it can act only in respect of judicial or at the most quasi-judicial actions.
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By giving wider meaning to the word tribunal in this Article as well as in Art 136,
the courts have included various administrative authorities within the power of
superintendence.
Exclusion of Court Martial Proceedings : Clause (4) of art 227, however, excludes
the tribunals constituted by or under any law relating to the armed forces from the
supervisory jurisdictions of the High Courts. ie The court martial proceedings under
the Military law are not within the power of superintendence of the High Court,
though they are subject to judicial review under Art 226.
A petition under Art 227 is not maintainable if there is an adequate alternative
remedy. eg A petition under Art 227 to the High Court filed under the Consumers
protection act dismissing a petition for non-appearance would not lie since the
statutory remedy of appealing under sec. 15 or applying for revision under sec. 17
to the State Commission under that Act was available.
Distinction between provisions under Art-226 and Art-227 :
Remedy against the administrative tribunal :
According to Article 227 (1) as it existed before the 42nd amendment of the
Constitution every High Court had the power of superintendence over all Courts
and tribunals within its territorial jurisdiction except those which are constituted
under a law relating to armed forces. These powers were withdrawn by 42nd
Amendment.
However, under Forty-forth Amendment act of the Constitution the jurisdiction of
the High Court over administrative tribunals has been restored and accordingly
the power of superintendence and supervision of the High Courts over them
exists as before.
The high Courts were thus empowered to exercise broad powers of
superintendence over Courts and tribunals. The power extended not only to
administrative but also even to judicial superintendence over judicial or quasi-
judicial bodies.
The power of the High Court under Article 226 differed from power of
superintendence exercised by it under Article 227
Firstly, where it could quash orders of inferior court or tribunal, but the court
under Article 226 may quash the order as well as issue further directions in the
matter.
Secondly, Under Article 227 the power of interference was limited to seeing that
the tribunal function within the limits of its authority .
Thirdly, the power under Article 227 will only be exercised where the party
affected moves the court, while the superintending power under Article 227
could be exercised at the instance of High Court itself.
In exercising the supervisory power under Article 227, the High Court does not act
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as an appellate tribunal. It did not use to review to reweigh the evidence upon
which the determination of the inferior tribunal purported to be based.
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Write note : difference between powers under Art-32 and 226. (Nov-2012, Dec-2015)
Write notes : Distinction between writ jurisdiction of High Courts and the Supreme
Court. (Oct-2013)
Explain the power of high courts to issue writs under Art-226 of the constitution of
India. How these powers differ from that of supreme court under Art-32? (Nov-2014)
ANSWER :
Refer :
page-96 / 135
page-105-120 / 271
CONSTITUTIONAL MODES OF JUDICIAL REVIEW :
The judicial review available under article 32, 136 226 and 227 is taken as
Constitutional mode of judicial review, which can NOT be excluded by the finality
clause contained in the statute and expressed in any languages.
Any statute or ordinary laws cannot take away the jurisdiction of writ Courts under
article 32, 136, 226 and 227 as the Constitution of India provides them.
Any ordinary law cannot bar the jurisdiction of the Supreme Court under Article 32
and 136 and of the High Court under Articles 226 and 227.
Case-law :
In Keshava Nanda Bharti v. State of Kerala, ( A.I.R. 1973 S.C. 1461 ) the
Supreme Court has held that the Parliament has power to amend the
Constitution but it cannot destroy or abrogate the basic structure or framework
of the Constitution. Article 368 does not enable Parliament of abrogate or take
away Fundamental right or to completely alter the fundamental features of the
Constitution so as to destroy its identity.
In Indra Nehru Gandhi v. Raj Narain, the validity of Clause (4) of Article 329 A
inserted by the Constitution (39 the Amendment ) Act, 1975 was challenged on
the ground that it destroyed the basic structure of the Constitution.
Issue : The said Clause (4) provided that notwithstanding any Court order
declaring the election of the Prime Minister or the Speaker of Parliament to be
void, it would continue to be void in all respects and any such order and any
finding on which such order was based would be deemed always to have been
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The right to move the Supreme Court in itself is a guaranteed right, and
Gajendragadkar, J., has assessed the significance of this in the following manner
:
The fundamental right to move this Court can therefore be appropriately
described as the cornerstone of the democratic edifice raised by the
Constitution. That is why it is natural that this Court should in the words of
Patanjali Sastri, J., regard itself as the protector and guarantor of
fundamental rights and should declare that it cannot consistently with the
responsibility laid upon it, refuse to entertain applications seeking protection
against infringement of such rights.
Since Article 32 is itself fundamental right, it cannot be whittled down by a
legislation. It can be invoked even where an administrative action has been
declared as final by the statute.
WHO can complain ? Under Article 32 of the Constitution the following person may
complain of the infraction of any of the fundamental rights :
Any person including corporate bodies who complains of the infraction of any of
the fundamental rights guaranteed by the Constitution is at liberty to move the
Supreme Court except where the languages of the provision or the nature of the
right implies the inference that they are applicable only to natural person.
The right that could be enforced under article 32 must ordinarily be the rights of
the petitioner himself who complains of the infraction of such rights and
approaches the Court for relief. An exception is as held in the Calcutta Gas Case,
(AIR 1962 SC 1044) that in case of habeas corpus not only the man who is or
detained in confinement but any person provided he is not an absolute stranger,
can institute proceeding to obtain a writ of habeas corpus for the purpose of
liberation.
The Constitution of India assigns to the Supreme Court and the High Courts the
role of the custodian and guarantor of fundamental rights. Therefore, where a
fundamental right is involved, the courts consider it to be their duty to provide
relief and remedy to the aggrieved person. However, in matters other than the
fundamental rights, generally the jurisdiction of the courts to grant relief is
considered to be discretionary. The discretion is, however, governed by the
broad and fundamental principles, which apply to the writs in England.
Case-laws :
A petition under Art 32 may be rejected on the ground of inordinate delay.
However, a writ petition made after 12 years by a person belonging to lower
echelons of service against the Department which had not counted his service
in the officiating capacity, was entertained because the Department had not
given reply to his representations.
It was held in one of the decided case (A.I.R 1964 S.C. 1013; Supreme Court
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almost become a site for public interest litigation where fundamental rights of
the people are agitated. It is under this jurisdiction that the human rights
jurisprudence and environmental jurisprudence have developed.
The Court has given such expansive interpretation of art 21 of the
Constitution that the question, which seemed to be alien (few decades ago) to
Art 32, became integral part of it. The right to life and personal liberty came
to comprehend such diverse aspects of human freedom such as the right to
environment, or the right to gender justice or the right to good governance,
etc became matters involving fundamental rights. Since the rights to live
guaranteed by Art 21 included the right to live with dignity the right to
unpolluted environmental jurisprudence has emerged.
With the growth of the public interest litigation Art 32 has become an important
site for the vindication of various group human rights. The Court has even
incorporated some of the directive principles of state policy within the compass
of the fundamental rights. For example, it declared that the right to primary
education was a fundamental right.
Compare Art-32 and Art-136 :
The ambit of Supreme Courts jurisdiction under Article 136 is in some respects
broader than that under Article 32. Article 32 is confined to the enforcement of
fundamental rights only whereas Article 136 is not so. The appellate jurisdiction
of the court gives more scope to the Court to intervene with adjudicatory bodies
and provides grounds of judicial control.
But from another point of view the jurisdiction of the Court under Article 136 is
narrower than that under Article 32. Article 136 is available only in cases of
tribunals while Article 32 can be invoked when any authority whatsoever
infringes a fundamental right.
It has been found that the Court has been extremely reluctant to intervene with
quasi-judicial bodies.
Art-226 :
<read from elsewhere in this doc>
Compare Art-32 and Art-226 :
Similarities : Power of issuing writs comes under original jurisdiction (to hear the
matter at first instance) of both Supreme Court and High Courts. An aggrieved
person has option to move any of them.
The jurisdictions under Art 32 and 226 are concurrent and independent of each
other so far as the fundamental rights are concerned. A person has a choice of
remedies. He may move either the Supreme Court under Art 32 or an
appropriate High Court under Art 226.
Differences :
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While Supreme Court has power to issue writs via article 32, High Courts have
this power via article 226.
While Supreme Court has power to issue writs for enforcement of ONLY
Fundamental rights, High Courts can issue writs for enforcement of fundamental
rights as well as any other matter also.
Article 226 empowers the High Courts to issue writs for the enforcement of
any of the fundamental rights or for any other purpose. It has been held that
the words for any other purpose mean for the enforcement of any statutory
or common law rights.
Thus, the jurisdiction of the High Courts under Art 226 is wider than that of
the Supreme Court under Art 32.
During emergency, SC can not grant relief on suspension of FR. However, HCs
will continue to grant relief.
Supreme Court cannot refuse to exercise its writ jurisdiction mainly because
article 32 itself is a fundamental right and supreme court is guarantor or
defender of fundamental rights.
However, for high courts, exercising the power to issue writs is discretionary.
Supreme Court can issue a writ against any person or authority within the
territory of India while high court can issue such writ under its own territorial
jurisdiction.
Thus, High courts writ jurisdiction is narrower in terms of territorial extent.
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petitioner cannot take another chance by filing a petition under Art 226 in the
High Court having jurisdiction over his matter because such a petition would also
be barred by res judicata.
The High Courts jurisdiction in respect of other purposes is discretionary. The
courts have laid down rules in accordance with which such discretion is to be
exercised. The jurisdiction of the High Court under Art 226 cannot be invoked if :
The petition is barred by res jusicata;
If there is an alternative and equally efficacious remedy available and which
has not been exhausted;
If the petition raised questions of facts which are disputed; and
If the petition has been made after an inordinate delay.
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administration.
He also makes his own recommendations to eliminate the causes of complaints.
Very wide publicity is given to those reports.
All his reports are also published in the national newspapers. Thus, in short, he is
the 'watchdog' or 'public safety valve' against maladministration, and the "protector
of the little man".
Defects : Of course, there are some arguments against setting up of the office of the
Ombudsman.
1. It is argued that this institution may prove successful in those countries which
have a comparatively small population, but it may not prove very useful in
populous countries, like U.S.A. or India, as the number of complaints may be too
large for a single man to dispose of.
2. It is also said that the success of the institution of Ombudsman in Denmark
owes a great deal to the personality of its first Ombudsman Professor Hurwitz. He
took a keen interest in the complaints made to him and investigated them
personally. Prestige and personal contact would be lost if there are a number of
such officers, or if there is a single officer who has always to depend upon a large
staff and subordinate officers.
3. According to Mukherjea, J., in India this institution is not suitable. He describes
it as "an accusatorial and inquisitorial institution-a combination unprecedented in
democracy with traditions of independent judiciary". It is an 'impracticable and
disastrous experiment' which will not fit into the Indian Constitution.
Conclusion:
In a democratic Government, it is expected that the subjects have adequate means
for the redress of their grievances. Since the present judicial system is not
sufficient to deal with all cases of injustices, an institution like Ombudsman may
help in doing full and complete justice to aggrieved persons.
But Ombudsman is not a "panacea for all the evils of bureaucracy." His success
depends upon the existence of a reasonably well-administered State. He cannot
cope with the situation where administration is riddled with patronage and
corruption.
Indian Parliament so far has not enacted any Act though a proposal to constitute
an institution of Ombudsman (Lokpal) was made by the Administrative Reforms
Commission as early as in 1967.
Some States, however, have enacted statutes and appointed Lokayukta.
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1968 : In 1968 a Bill called the Lokpal and Lokayuktas Bill was introduced in the
Lok Sabha but before it could be passed, the Lok Sabha was dissolved and
therefore the Bill lapsed.
1971 : In 1971 and another Bill was introduced in the Lok Sabha but again the Bill
lapsed on account of the dissolution of the Lok Sabha.
1977 : In 1977 a new Bill called Lokpal Bill, 1977 was introduced in the Lok Sabha.
The Bill was referred to the Joint Select Committee of the two House of Parliament
but the Bill again lapsed on account of the dissolution of the Lok Sabha.
1985 : Again Lok Pal Bill, 1985 was introduced in the Lok Sabha and it also lapsed
because before its passage the term of the Lok Sabha ended.
1989 : 1989, Once again Lokpal Bill, 1989 by introduced.
1998 :
In August 1998 the Prime Minister Atal Bihari Bajpae presented the Lokpal Bill in
the Lok Sabha. The Prime Minister was also been brought within the jurisdiction
or power of Lokpal.
Under the Bill the Lokpal was empowered to make enquiries in the charges of
completion brought before, it against any Minister or Prime Minister or Member
or either House of Parliament.
However, he was not empowered to make enquires in the charges of corruption
against the President, Vice-President, Speaker of Lok Sabha, Comptroller and
Auditor general, Chief Election Commissioner and other Election Commissioner,
Judges of the Supreme Court and Members of the Union Public Service
Commission.
Under this Bill the institution of Lokpal was to consisted of three members
including its Chairman. Only the sitting or retired Chief Justice of India or any
Judge of the Supreme Court could be appointed its Chairman while any sitting or
retired Judge of the Supreme Court of Chief Justice of any High Court could be
appointed its members.
The appointment was to be made by President on the recommendation of the
selection committee consisting of seven members. The Vice-President would be
the Chairman of this selection committee.
The Bill could not been enacted into Act.
Desirable features of Lokpal/ Lokayukta :
Establish institutions of Lokpal/ Lokayukta. These institutions shall consist of a
Chairman and two members who may be either sitting or retired Judges of the
Supreme Court / High Court.
Where all or any of the allegation have been substantiated against a Minister,
the Prime/ Chief Minister will decide the action to be taken on the
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and authority of the tribunals. Section 14(1) of the Act vests the Central
Administrative Tribunal to exercise all the jurisdiction, powers and authority
exercisable by all the courts except the Supreme Court of India under Article 136 of
the Constitution.
One of the main features of the Indian Constitution is judicial review. There is a
hierarchy of courts for the enforcement of legal and constitutional rights. One can
appeal against the decision of one court to another, like from District Court to the
High Court and then finally to the Supreme Court, But there is no such hierarchy of
Administrative Tribunals and regarding adjudication of service matters, one would
have a remedy only before one of the Tribunals.
Though Supreme Court under Article 136, has jurisdiction over the decisions of the
Tribunals, as a matter of right, no person can appeal to the Supreme Court. It is
discretionary with the Supreme Court to grant or not to grant special leave to
appeal.
The Administrative Tribunals have the authority to issue writs.
On the other hand, the prerogative writs of certiorari and prohibition are
available against the decisions of administrative tribunals.
In disposing of the cases, the Tribunal observes the canons, principles and norms
of natural justice.
The Act provides that a Tribunal shall not be bound by the procedure laid down in
the Code of Civil Procedure 1908, but shall be guided by the principles of natural
justice.
The Tribunal shall have power to regulate its own procedure including the fixing of
the place and times of its enquiry and deciding whether to sit in public of private.
A Tribunal has the same jurisdiction, powers and authority, as those exercised by
the High Court, in respect of Contempt of itself that is, punish for contempt, and
for the purpose, the provisions of the contempt of Courts Act 1971 have been
made applicable. This helps the Tribunals in ensuring that they are taken seriously
and their orders are not ignored.
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Case-law : L. Chandrakumar :
https://indiankanoon.org/doc/176831494/
https://indiankanoon.org/doc/145084454/
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Module - 4) Miscellaneous :
4.1) Liability of the Government
4.1.1) Contractual Liability
4.1.2) Tortuous liability, Doctrine of Estoppel, Crown Privilege
4.2) Public Corporations: Definition, characteristics, classification and working
4.3) Rights and liabilities of Public Corporations, Control over Public
Corporations
4.4) Vigilance Commission,
4.5) Doctrine of Legitimate Expectation (overlap with module-3.1), Doctrine of
unjust enrichment
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Module-4 QUESTIONS :
Explain the contractual liabilities and tortious liabilities of state with decided
cases. (Dec-2015)
Explain the contractual liabilities of the state with decided cases. (Nov-2011)
Explain in detail the tortuous liabilities of the State taking into consideration the
Judicial Approach. (Oct-2013)
Explain the tortuous liabilities of the state with decided cases. (Nov-2011, Nov-2012,
Nov-2014)
Discuss : Crown Privilege
Privileges and Immunities of the Administration in Suits
Limited immunity of state from Doctrine of Promissory Estoppel.
Define the term public corporation and explain its statutory and constitutional
position. (Dec-2015)
Explain : concept and importance of the public corporation. (Nov-2011, Oct-2013,
Nov-2014)
Discuss : Classification of public corporation
Discuss : Rights and liabilities of public corporation
Write note : Parliamentary control on public corporation. (Nov-2012)
Write note : vigilance commission. (Nov-2012, Oct-2013, Dec-2015)
Explain in detail the powers and functions of Vigilance Commission with case laws.
(Dec-2016)
Write note : Doctrine of legitimate expectation. (Nov-2012)
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Module-4 ANSWERS :
Explain the contractual liabilities and tortious liabilities of state with decided
cases. (Dec-2015)
Explain the contractual liabilities of the state with decided cases. (Nov-2011)
Explain in detail the tortuous liabilities of the State taking into consideration the
Judicial Approach. (Oct-2013)
Explain the tortuous liabilities of the state with decided cases. (Nov-2011, Nov-2012,
Nov-2014)
ANSWER :
Intro :
It is fundamental to the rule of law that the Crown, like other public authorities,
should bear its fair share of legal liability and be answerable for wrongs done to its
subjects. The immense expansion of governmental activity from the latter part of
the nineteenth century onwards made it intolerable for the Government, in the
name of the Crown, to enjoy exemption from the ordinary law.
English law has always clung to the theory that the King is subject to law and,
accordingly, can commit breach thereof. As far as 700 years ago, Bracton had
observed: The King is not under man, but under God and under the law, because
it is the law that makes the King.
In India, history has traced different path. The maxim the King can do no wrong
has never been accepted in India. The Union and the States are legal persons and
they can be held liable for breach of contract and in tort. They can file suits and
suits can be filed against them.
The liabilities of state may be divided in to following categories :
contractual liabilities, and
tortious liabilities
CONTRACTUAL LIABILITIES OF STATE : Contractual liability of the Union of India and
States is recognized in the Constitution itself.
Article 298 expressly provides that the executive power of the Union and of each
State shall extend to the carrying on of any trade or business and the acquisition,
holding and disposal of property and the making of contracts for any purpose.
Article 299(1) prescribes the mode or manner of execution of such contracts. It
reads : All contracts made in the exercise of the executive power of the Union or of
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applied the provisions of Section 70 of the Indian Contract Act, 1872 and held
the Government liable to compensate the other contracting party on the basis of
quasi-contractual liability.
What Section 70 provides is that if the goods delivered are accepted or the work
done is voluntarily enjoyed, then the liability to pay compensation for the
enjoyment of the said goods or the acceptance of the said work arises.
Thus, where a claim for compensation is made by one person against another
under Section 70 of Indian Contract Act, 1872, it is not on the basis of any
subsisting contract between the parties, but on the basis of the fact that
something was done by one party for the other and the said work so done has
been voluntarily accepted by the other party. Thus, Section 70 of the Contract
Act prevents unjust enrichment.
However, before Section 70 of the Contract Act is invoked, the following
conditions must be fulfilled :
A person must have lawfully done something for another person or deliver
something to him;
He must not have intended to do such act gratuitously; and
The other person must have accepted the act or enjoyed the benefit.
If above three conditions are fulfilled the section 70 of ICA 1872 enjoins on
the person receiving benefit to pay compensation to the other party.
Doctrine of Unjust Enrichment : Read elsewhere in this doc.
Grant of State largess :
The modern State is no more a Police State. It has become Welfare State and
in that role, it has undertaken several commercial activities. A private individual,
no doubt, has an absolute right whether to enter into contract with the State.
The State has equally a right to enter or not to enter an agreement with any
person.
The said right, however, is not absolute, unlimited or unqualified particularly in
granting State largess.
Contract of Service :
A contract of service between State and a private person is not governed by
Article 299 of the Constitution. At the initial stage of appointment in Government
service, no doubt, there is a contract between the parties. There is an offer and
acceptance of employment.
But once a person is appointed, he/she acquires a status and the relationship no
more governs by a contract, but by an appropriate Legislation or Rules under
proviso to Article 309 of the Constitution.
In the leading case of Roshan Lal Tandon v. Union of India, the Constitution
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Bench of the Supreme Court stated: It is true that Article 311 imposes
constitutional restrictions upon the power of removal granted to the President
and the Governor under Article 310. But it is obvious that the relationship
between the Government and its servant is not like an ordinary contract of
service between a master and servant. The legal relationship is something
entirely different, something in the nature of status. It is much more than a
purely contractual relationship voluntarily entered into between the parties. The
duties of status are fixed by the law and in the enforcement of these duties
society has an interest. In the language of jurisprudence status is a condition of
membership of a group of which powers and duties are exclusively determined
by law and not by agreement between the parties concerned.
Unconscionable Contracts :
If a contract between an individual and a Government contains a clause which is
arbitrary, unreasonable, unconscionable or opposed to public policy. It cannot be
enforced by a court of law.
Thus, a condition in a service contract that service of a permanent employee can
be terminated by paying three months salary cannot be enforced. Similarly, a
provision in a contract of service empowering the employer to terminate services
of an Air Hostess on her first pregnancy must be held to be extremely arbitrary,
unreasonable and abhorrent to all notions of civilized society. Likewise, en messe
termination of all Government Counsel without assigning any reason is violative
of Article 14 of the Constitution even if the action is in accordance with a term of
the contract.
On the same principle, all allotments made in favour of several persons granting
licence to run petrol pumps cannot be cancelled. Even in contractual matters,
the Government cannot act unreasonably.
Statutory Contracts : Article 299 of the Constitution applies to a contract made by
the Government in exercise of executive powers and not in exercise of statutory
powers. Thus, there is a distinction between contracts entered into between
Government and a private party in exercise of executive powers and in exercise of
statutory powers of the State.
The rights and liabilities of the parties in a contract entered into between
Government and an individual in exercise of the executive powers of the State
are governed by Article 299 of the Constitution, *BUT* the rights and liabilities
of the parties in a contract government by a statutory provisions are governed
by the relevant statute under which such contract is entered into. Article 299 of
the Constitution has no application to such contracts.
TORTIOUS LIABILITY OF STATE : Should the State be held liable in respect of tortious
acts committed by its servants ?
Under Article 294(b) of the Constitution, the liability of the Union Government or a
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State Government may arise out of any contract or otherwise. The word
'otherwise' suggests that the said liability may arise in respect of tortuous acts
also.
Under Article 300(1), the extent of such liability is fixed. It provides that the
liability of the Union of India or of a State Government will be the same as that of
the Dominion of India and the Provinces before the commencement of the
Constitution (if this Constitution had not been enacted).
Doctrine of Vicarious Liability :
Since the State is a legal entity and not a living personality, it has to act through
human agency, i.e. through its servants. When we discuss the tortuous liability
of the State, it is really the liability of the State for the tortious acts of its
servants that has to be considered.
In other words, it refers to when the State can be held vicariously liable for the
wrongs committed by its servants or employees.
Vicarious liability refers to a situation where one person is held liable for act or
omission of other person. Thus, the master may be held liable for the torts
committed by his servant in the course of employment.
The doctrine of vicarious liability is based on two maxims :
Respondeat superior (Let the principal be liable); and
Qui facit per alium facit per se (He who does an act through another does it
himself).
There is no reason why this doctrine should not be applied to the Crown in
respect of torts committed by its servants. In fact, if the Crown is not held
vicariously liable for such torts, the aggrieved party, even though it had
sustained a legal injury, would be without any effective remedy, in as much as
the government servant may not have sufficient means to satisfy the judgment
and decree passed against him.
In State of Rajasthan v. Vidhyawati, a jeep was owned and maintained by the
State of Rajasthan for the official use of the Collector of a district. Once the
driver of the jeep was bringing it back from the workshop, after repairs. By his
rash and negligent driving of the jeep a pedestrian was knocked down. He died
and his widow sued the driver and the State for damages. A Constitution Bench
of the Supreme Court held the State vicariously liable for the rash and negligent
act of the driver. The court after referring to the P & O Steam Navigation Co. did
not go into the wider question as to whether the act was a sovereign act or not.
But it held that the rule of immunity based on the English law had no validity in
India.
Distinction between soverign and non-soverign functions of the State :
The Court, in cases subsequent to State of Rajasthan v. Vidhyawati, decided to
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look into the matter of whether the act was sovereign or not. The principle which
emerges is that if the function involved is a sovereign function, the State
cannot be held liable in tort, but if it is a non-sovereign function, the State will
be held liable.
Example of sovereign function --- failure of security forces to neutralize
terrorists or to control riots
Example of non-sovereign function --- State of Rajasthan v. Vidhyawati
But the difficulty lies in formulating a definite test or criterion to decide to which
category the act belongs. In fact, it is very difficult to draw a distinction between
the two. The watertight compartmentalization of the State's functions into
sovereign and non-sovereign or governmental and non-governmental is unsound
and highly reminiscent of the laissez faire era.
The test whether the act in question could have been performed only by the
government or also by a private individual is also not helpful in deciding the
issue. In a welfare State, the governmental functions have increased and today,
not all the functions performed by the Government are sovereign functions; e.g.
commercial activities like the running of the Railways.
It is also said that if the act in question is statutory, it may be regarded as a
sovereign function, but it is a non sovereign function if it is non-statutory. But
this test is equally defective. An activity may be regarded as sovereign even
though it has no statutory basis (power to enter into a treaty with a foreign
country) and conversely, it may be regarded as non-sovereign even though it
has a statutory basis (running of Railways).
Moreover, sometimes a particular act may be held to be a sovereign function by
one court but non-sovereign by another. For example, running of the Railways
was held to be a sovereign function by the High Court of Bombay, but non-
sovereign by the High Court of Calcutta and this may lead to further uncertainty
in law.
Further, the traditional doctrine of sovereign immunity has no relevance in the
modern age when the concept of sovereignty itself has undergone drastic
change. The old and archaic concept of sovereignty no longer survives.
Sovereignty now vests in the people.
Hence, even such actions of the Government which are solely concerned with
relations between two independent States are now amenable to scrutiny by
courts.
Sometimes the distinction between sovereign and non-sovereign functions is
categorized as regal and non-regal functions. The former is confined to
legislative, executive and judicial power whereas the latter can be characterized
as analogous to private company. In the former, the Government is not liable
but in the latter, it is liable.
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the concept of public interest has also undergone change. No legal or political
system today can place the State above law and can deprive its citizens of life,
liberty or property by negligent acts of its officers without providing any remedy.
Even if the governmental functions can be classified into one or the other category,
the principle is unsatisfactory from yet another viewpoint. Generally, in a civil
action in tort, the principal idea is to compensate the aggrieved person and not to
penalize the wrongdoer or his master. And if in compensating the aggrieved party,
the wrongdoer or his master has to pay damages, the resultant burden on the
latter is merely incidental and not by way of penalty or punishment. It is, therefore,
absurd and inhumane to hold that the Government would not be liable if a military
truck supplying meals to military personnel struck a citizen, but it would be liable if
such an accident occurred when the truck carried coal to an army headquarters.
Conclusion: Recent judicial trend is, undoubtedly, in favour of holding the State liable
in respect of tortious acts committed by its servants. In cases of police brutalities,
wrongful arrest and detention, keeping the under-trial prisoners in jail for long
periods, committing assault or beating up prisoners, etc. the courts have awarded
compensation to the victims or to the heirs and legal representatives of the deceased.
As a matter of fact, the courts have severely criticized the inhuman attitude adopted
by the State officials.
The Law Commission also stated: The old distinction between sovereign and non-
sovereign functions should no longer be invoked to determine liability of the State.
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before the Court in case the disclosure thereof is likely to jeopardize the public
interest.
In Duncon v. Cammel Laird Co. Ltd. (1942 AC 624) The Court held that the Crown
is the sole judge to decide whether a document is a privileged one and the court
cannot review the decision of the Crown. However, this decision has been overruled
in the case of Conway v. Rimmer. ( 1968 AC 910) In this case the Court has held
that it is not an absolute privilege of the Crown to decide whether a document is a
privileged one. The court can see it and decide whether it is a privileged one or not.
In India S. 123 provides that no one shall be permitted to give any evidence
derived from unpublished official records relating to any affair of State except with
the permission of the officer at the Head thinks fit. Only those records relating to
the affairs of the State are privileged, the disclosure of which would cause injury to
the public interest.
To claim this immunity the document must relate to affairs of state and disclosure
thereof must be against interest of the State or public service and interest.
The section is based on the principle that the disclosure of the document in
question would cause injury to the public interest. And that, in case of conflict
between the public interest and the private interest, the private interest must yield
to the public interest.
The Court has power to decide as to whether such communication has been made
to the officer in official confidence. For the application of S.124 the communication
is required to have made to a public officer in official confidence and the public
officer must consider that the disclosure of the communication will cause injury to
the public interest.
According to S.162 a witness summoned to provide a document shall, if it is in his
possession or power, bring it to the Court, not withstanding any objection which
there may be to its production or to its admissibility. The Court shall decide on the
validity of any such objection.
It is for the Court to decide as to whether a document is or is not a record relating
to the affairs of the State. For this purpose the Court can take evidence and may
inspect the document itself.
Case law :
In State of Punjab v. Sodhi Sukdev Singh ( AIR 1961 SC 493) the court had the
opportunity of discussing the extent of government privilege to withhold documents
where twin claims of governmental confidentiality and individual justice compete
for recognition. The court was very alive to the constraints of this privilege on
private defense, therefore Gajendragadkar, J. delivering the majority judgment
cautioned that care has to be taken to see that interests other than that of the
public do not masquerade in the garb of public interest and take undue advantage
of the provision of Section 123. In order to guard against the possible misuse of
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Definition : Section 2 (j) of Limitation Act 1963 : "period of limitation" means the
period of limitation prescribed for any suit, appeal or application by the Schedule,
and "prescribed period" means the period of limitation computed in accordance
with the provisions of this Act;
Definition : Section 3 : Bar of limitation :
(1) Subject to the provisions contained in sections 4 to 24 (inclusive), every suit
instituted, appeal preferred, and application made after the prescribed period
shall be dismissed although limitation has not been set up as a defence.
....
Sr No 112 of the First Schedule of the Limitation Act 1963 prescribes period of
limitation for suits by or on behalf of the State. The provision applies to the Central
Government an all the State Governments including the Government of the State
of Jammu and Kashmir.
The longer limitation period was based on the common law maxim "nulla tempus
occur it rein" (ie, no time affects the Crown). The longer period of limitation,
however, does not apply to appeals and applications by Government.
Under Sec-5 of the Limitation Act, it is provided that an appeal or application may
be admitted after the expiry of the period of limitation if the court is satisfied that
there was sufficient cause for the delay. It was held that the government was not
entitled to any special consideration in the matter of condonation of delay.
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For the application of the doctrine of Promissory Estoppel it is not necessary that
there should be some pre-existing contractual relationship between the parties.
In Delhi Cloth and General Mills v. Union of India, (1988 1 S.C.C. 86) the Supreme
Court has held that for the application of the principle of Promissory Estoppel change
in position by acting on the assurance to the promise is not required to be proved.
Exceptions :
The judicial opinion is that it cannot be invoked against a statutory provision or to
support an ultra vires act or to compel the Government or a public authority to
carry out a promise, which is contrary to law, or ultra vires its powers.
The doctrine of Promissory Estoppel is not applied in the following conditions :
1. Public Interest : The doctrine of Promissory Estoppel is an equitable doctrine and
therefore it must yield place to the equity if larger public interest requires. It would
not be enough to say that the public interest requires that the Government would
suffer if the Government were required to honor it. In order to resist its liability the
Government would disclose to the Court the various event insisting its claim to be
exempt from liability and it would be for the Court to decide whether those events
are such as to render it equitable and to enforce the liability against the
Government.
2. Representation against law: The doctrine of Promissory Estoppel cannot be
applied so as compel the Government or the public authority to carry out a
promise, which does law prohibit.
3. Ultra vires promise or representation: If the promise or representation made by
the officer is beyond his power, the State cannot be held liable for it on the basis of
the Principle of Promissory Estoppel.
4. Fraud : the doctrine of Promissory Estoppel is not applied in cases where the
promise from the Government is obtained by fraud.
5. Fraud on the Constitution: The doctrine of Promissory Estoppel is not applied in
cases when the promise or representation is obtained to play fraud on the
Constitution and enforcement would defeat or tend to defeat the Constitutional
goal.
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Define the term public corporation and explain its statutory and constitutional
position. (Dec-2015)
Explain : concept and importance of the public corporation. (Nov-2011, Oct-2013,
Nov-2014)
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prosecution. In India, local authorities like Municipalities and District Boards have
been held responsible for the tort committed by their servants or officers.
Grant of exemption to government companies from the application of a statutory
provision does not fall foul of Art. 14 and is not discriminatory as government
companies stand in a different class altogether and the classification made between
government companies and others is a valid one.
The employees of a public corporation are subject to the labour laws.
Benefits of Public Corporation :
The principal benefits of the Public Corporation as an organizational device are its
freedom from unsuitable government regulations and controls and its high degree
of operating and financial flexibility. In this form, one discerns a balance between
the autonomy and flexibility enjoyed by private enterprise and the responsibility of
the public as represented by elected members and legislators.
Problems of Public Corporation : Public Corporation has succeeded in solving a
number of problems. At the same time, however, it has created some others. Some of
the more pressing problems confronting the Public Corporations are:
Difficulty of reconciling autonomy of the corporation with public accountability.
That the Public Corporations cannot be made immune from ministerial control land
direction is universally conceded. But how to do it without infringing their corporate
autonomy has come into direct conflict with the urgent need for bringing the
operations of this Corporation into harmony with related actions of the
government.
Vacuum Removal from the so-called political pressures may mean, in fact, that the
significant political power is being placed in the hands of a small unrepresentative,
and in extreme cases, possibly even a self-perpetuating group controlling the Public
Corporations.
Conclusion :
The supreme considerations underlying the choice of Public Corporations in
preference to other forms of state enterprises are autonomy of the Corporations
must be scrupulously honored; the latter cannot be made wholly free from
responsibility to Parliament or from ministerial control. They are accountable to
Parliament at least on those matters, which lie under the control, direct or indirect,
of the Minister. Parliaments certainly entitled to discuss the general policies of the
Public Corporations, and the economy and efficiency of their administration.
However, day-to-day matters and details of administration must be left alone.
The need for reconciling autonomy of the Corporations with the accountability to
Parliament has been repeatedly emphasized .
The Supreme Court has recently underlined the principle of public accountability of
these enterprises (with reference to the life Insurance Corporation) in the following
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words :
Corporation which carries on the business of life insurance in the shape of a
statutory monopoly is answerable to the people of India with whose funds it
deals and to whose welfare it clams to cater".
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undertakings can be asked, have been laid down, namely, questions relating to
policy, an act or omission on the part of a Minister, or a matter of public interest
(even though seemingly pertaining to a matter of day-to-day administration or an
individual case), are ordinarily admissible. Questions which clearly relate to day-to-
day administration of the undertakings are normally not admissible.
3. Debates :
A more significant and effective method of parliamentary control is debate on the
affairs of a public corporation. Usually, this method is followed when annual
accounts and reports regarding the corporation are placed before Parliament for
discussion in accordance with the provisions of the statute concerned.
There is no general obligation on the part of all corporations to present their budget
estimates to Parliament. Estimates Committee, therefore, recommended that
corporations should prepare a performance and programme statement for the
budget year together with the previous year's statement and it should be made
available to Parliament at the time of the annual budget.
4. Parliamentary Committees :
This is the most effective form of parliamentary control and supervision over the
affairs conducted by public corporations. Parliament is a busy body and it is not
possible for it to go into details about the working of these corporations. Parliament
has, therefore, constituted the Committee on Public Undertakings in 1964.
The functions of the Committee are to examine the reports and accounts of the
public undertakings, to examine the reports, if any, of the Comptroller and Auditor-
General on the public corporations, to examine in the context of the autonomy and
efficiency of the public corporations, whether their affairs are being managed in
accordance with sound business principles and prudent commercial practices.
The recommendations of the Committee are advisory and, therefore, not binding
on the Government. Yet, by convention, they are regarded as the
recommendations by Parliament itself, and the Government accepts those
recommendations; and in case of non-acceptance of the recommendations of the
Committee, the ministry concerned has to give reasons therefor.
Conclusions :
No doubt, parliamentary control over the public corporations is "diffuse and
haphazard", yet it is the duty of Parliament to ensure that if a corporation is
exercising too great a measure of freedom, it should be brought to heel.
The whole purpose of establishing an autonomous undertaking is to make it free, in
its daily working from detailed scrutiny by members of Parliament. But since the
functions carried on by these undertakings are of public concern and to be
performed in public interest, Parliament cannot completely absolve itself of its
controlling function.
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any employment in the Union or State Government or any political, public office.
Removal : CVC can be removed or suspended from the office by the President on
the ground of misbehavior but only after the Supreme Court has held an inquiry
into his case and recommended action against him.
Procedure followed by CVC :
The Commission receives complaints from individual persons.
CVC also gathers information about corruption and malpractices or misconduct
from various sources, such as, press reports, information given by the members of
parliament in their speeches made in parliament, audit objections, information or
comments appearing in the reports of parliamentary committees, Audit Reports
and information coming to its knowledge through Central Bureau of Investigation.
CVC also welcomes the assistance of voluntary organizations like Sadachar Samiti
and responsible citizens and the press.
The Commission often receives complaints pertaining to matters falling within the
scope of the State Governments. Where considered suitable, such complaints are
brought to the notice of state vigilance commissioners concerned for necessary
action. Similarly, state SVCs forward complaints received by the State Vigilance
Commission in regard to matter falling within the jurisdiction of the Central
Government, to the Central Vigilance Commission for appropriate action.
The Central vigilance Commission has the following alternatives to deal with these
complaints :
a) It may entrust the matter for inquiry to the administrative Ministry/
Department concerned.
b) It may ask the Central Bureau of Investigation (C. B. I) to make an enquiry.
c) It may ask the Director of the C. B. I to register a case and investigate it.
Judicial activism :
CVC had been given jurisdiction and power to conduct an enquiry into transaction
in which publics servant are suspected of impropriety and corruption including
misconduct, misdemeanor, lack of integrity and malpractices against civil servants.
And the Central Bureau of Investigation (CBI) in its operations assisted the
Commission.
The CVC has taken a serious note for the growing preoccupation of the CBI with
work other than vigilance. Thus when the CBI is extensively used for non-
corruption investigation work such as drug-trafficking, smuggling and murders it
hampers the work of the CVC.
But how effective this institution has proved in uprooting corruption depends on
various factors, the most important being the earnestness on the part of the
government, citizens and institutions to clean public life .
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In its efforts to check corruption in public life and to provide good governance the
Apex Court recommended measures of far-arching consequences while disposing a
public interest litigation petition on the Jain Hawala Case. Three Judge Bench
separated four major investigating agencies from the control of the executive.
These agencies are :
Central Bureau of Investigation;
Enforcement Directorate;
Revenue Intelligence Department and
The Central Vigilance Commission.
The Court has shifted the CBI under the administrative control of the CVC. The
Central Vigilance Commission, until now, was under the Home Ministry entrusted
with the task of bringing to book cases of corruption and sundry wrongdoings and
suggesting departmental action. Now the CVC is to be the umbrella agency and
would coordinate the work of three other investigating arms.
In order to give effect to the view of the Supreme Court, the government issued an
ordinance on August 25, 1998. However, this measure had diluted the views of the
Supreme Court by pitting one view against the other. Therefore, what ought to
have been visualized as a reformative step had begun to seen as a cleaver
bureaucratic legalese.
It was when the Supreme Court expressed concern over these aspects of the
Ordinance in the hearing relating to its validity that the government decided to
amend the Ordinance and thus, on October 27, 1998 Central Vigilance Commission
(Amendment) Ordinance was issued. The Commission was made a four-member
body and its membership was opened to others, besides bureaucrats.
In the same manner the single directive of prior permission was deleted and the
membership of Secretary Personnel, Government of India was deleted.
Conclusion :
It is too early to comment on the functioning of the reconstituted statutory Central
Vigilance Commission but one thing is certain that no commission can root out
corruption, which has sunk so deep in the body politic. It can only act as a
facilitator and propellant.
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binding the manner of the future exercise of administrative power in a particular case.
It follows that the concept of legitimate expectation is not the key which unlocks the
treasury of natural justice and it ought not to unlock the gate which shuts, the court
out of review on the merits, particularly when the element of speculation and
uncertainly is inherent in that very concept.
Case-law :
In Union of India v. Hindustan Development Corporations, ( 1993 3SCC 499 ) the
court held that it only operates in public law field and provides locus standi for
judicial review. Its denial is a ground for challenging the decision but denial can be
justified by showing some overriding public interest.
In the instant case, question arose regarding the validity of the dual policy of the
government in the matter of contracts with private parties for supply of goods.
There was no fixed procedure for fixation of price and allotment of quality to be
supplied by the big and small suppliers. The government adopted a dual price
policy, lower price for big suppliers and higher price for small suppliers in public
interest and allotment of quantity by suitably adjusting the same so as to break
the cartel.
The court held that this does not involve denial of any legitimate expectation.
The court observed : legitimate expectations may come in various forms and
owe their existence to different kind of circumstances and it is not possible to
give an exhaustive list in the context of vast and fast expansion of governmental
activities. By and large they arise in cases of promotions, which are in normal
course expected, though not guaranteed by way of statutory right, in cases of
contracts, distribution of largess by the Government and in somewhat similar
situations.
In Food Corporation of India v. M/s. Kamdhenu Cattle Seed Industries AIR 1993 SC
1601, the doctrine of legitimate expectation gets assimilated in the rule of law and
operates in our legal system in this manner and this extent.
The Court observed : The mere reasonable or legitimate expectation of a
citizen, in such a situation, may not by itself be a distinct enforceable right, but
failure to consider and give due weight to it may render the decision arbitrary,
and this is how the requirement of due consideration of a legitimate expectation
forms part of the principle of non-arbitrariness, a necessary concomitant of the
rule of law.
Every legitimate expectation is a relevant factor requiring due consideration in a
fair decision-making process.
In Lala Sachinder Kumar v. Patna Regional Development Authority, (AIR 1994
PATNA 128) the court again applied the doctrine of legitimate expectation and held
the order of allotment of residential plots issued by the Patna Regional
Development Authority as bad. In the instant case Regional Development Authority
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conferred to the claimant. In short, the correcting of the injustice which occurred
when the claimant suffered a subtraction from his or her wealth and the defendant
received corresponding benefit. Restitution can take the form of a personal or a
proprietary remedy. The defendant is ordered to pay the money value of the
benefit received. This personal money award is the typical form of restitution
ordered.
Comparison with Doctrine of restitution :
The Doctrine of unjust enrichment is an equitable principle and prevents a person
from enriching at the cost of another. Generally speaking, the mere receipt of a
benefit from another is unobjectionable and does not attract legal consequences.
The exception is where such receipt is 'unjust' or 'unjustified'. Both civilian and
common law legal systems have bodies of law providing remedies to reverse such
enrichment.
The doctrine of unjust enrichment is just and salutary in nature. It is based on the
principle that no person can get benefit when he has not suffered a loss. The
juristic basis of the obligation is not founded upon any contract or tort but upon a
third category of law, namely quasi-contract or the doctrine of restitution.
The law of unjust enrichment is closely related to, but not co-extensive with, the
law of restitution. The law of restitution is the law of gain-based recovery. It is
wider than the law of unjust enrichment. Restitution for unjust enrichment is a
subset of the law of restitution in the same way that compensation for breach of
contract is a subset of the law relating to compensation.
In Orient Paper Mills Ltd. v. State of Orissa, the Supreme Court did not grant refund
to a dealer since he had already passed on the burden to the purchaser. It was
observed that it was open to the Legislature to make a provision that an amount of
illegal tax paid by the persons could be claimed only by them and not by the dealer
and such restriction on the right of the dealer to obtain refund could lawfully be
imposed in the interests of general public.
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